Standard of review

Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

At para. 10, the Appeals Chamber set clearly the standard of review for Rule 11bis motions:

The Appeals Chamber recalls that an appeal pursuant to Rule 11bis(I) of the Rules is more akin to an interlocutory appeal, than to an appeal from judgement.[1] The Appeals Chamber further recalls that a Trial Chamber exercises discretion in different situations, inter alia, when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and in deciding points of practice or procedure.[2]A decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is such a discretionary decision. Under the plain language of Rule 11bis(B), the Referral Bench “may order” referral proprio motu or at the request of the Prosecutor. Thus, where an appeal is brought from a Rule 11bis referral decision, the issue “is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The burden rests upon the party challenging a discretionary decision to demonstrate that the Trial Chamber has committed a “discernible error.”[4] Accordingly, the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[5]

See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006, para. 6.

[1] Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 14-16.

[2] Prosecutor v. Slobodan Milošević, Cases Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3.

[3] Ibid., para. 4.

[4] Ibid., para. 5.

[5] Ibid., para. 6; Prosecutor v. Slobodan Milošević, Case No: IT-00-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 10.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Request of the USA for Review - 12.05.2006 MILUTINOVIĆ et al.
(IT-05-87-AR108bis.2)

At para. 6, the Appeals Chamber recalled the standard of review of decisions rendered pursuant to Rule 54bis of the Rules:

The Appeals Chamber recalls that Rule 54 and Rule 54bis allow a party in proceedings before the International Tribunal to request a Judge or a Trial Chamber to order a State to produce documents or information for the purposes of an investigation or the preparation or conduct of a trial. The Appeals Chamber considers that a Judge or Trial Chamber’s decision on a Rule 54bis request is a discretionary one.[1] Therefore, the Appeals Chamber will not conduct a de novo review of a Rule 54bis decision and the question before it is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[2] It must be demonstrated that the Trial Chamber has committed a “discernible error”[3] resulting in prejudice to a party. The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion only where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[4] The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations [. . .]” in reaching its discretionary decision.[5]

[1] See The Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-AR108bis, Decision on the Request of the Republic of Croatia for Review of a Binding Order, 9 September 1999 (Kordić and Čerkez Review Decision”), paras. 19, 40 (holding that a Trial Chamber’s determination of whether documents requested by a party from a State would be admissible and relevant at trial such that a binding order for production of those documents may be warranted is an issue that “falls squarely within the discretion of the Trial Chamber”); see also Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Joinder Decision”), para. 3 (stating that a Trial Chamber exercises its discretion in “many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”).

[2] Milošević Decision of 6 April 2006, para. 16 (internal citations omitted).

[3] Ibid.

[4] Ibid.

[5] Ibid.

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ICTY Rule Rule 54 bis
Notion(s) Filing Case
Decision on Additional Evidence - 01.06.2006 SIMIĆ Blagoje
(IT-95-9-A)

See para. 25:

25. The Appeals Chamber has held that the basis on which judicial notice is taken pursuant to this sub-Rule is that the material is notorious.[1] Facts of common knowledge under Rule 94(A) of the Rules have been considered to encompass common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nature, as well as those facts that are generally known within a tribunal’s territorial jurisdiction.[2] Once a Chamber deems a fact to be of common knowledge, it must also determine that the matter is not the subject of reasonable dispute.[3] […]

[1] Momir Nikolić v. Prosecutor, Case No.: IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Judicial Notice Decision”), para. 10, referring to Prosecutor v. Slobodan Milošević, Case No.: IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, pp. 3 and 4.

[2] Nikolić Judicial Notice Decision, para. 10.

[3] Idem.   

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 2 and 3, the Appeals Chamber stated:

CONSIDERING that, pursuant to Article 26 of the Statute of the Tribunal (“Statute”) and Rules 119 and 120 of the Rules, for a party to succeed in persuading the Appeals Chamber to review a judgement, the party must first satisfy the following cumulative requirements:

a)     there is a new fact;

b)     the new fact was not known to the moving party at the time of the original proceedings;

c)     the failure to discover the new fact was not due to a lack of due diligence on the part of the  moving party; and

d)     the new fact could have been a decisive factor in reaching the original decision;[3]

[…]

CONSIDERING that what is relevant in evaluating an application for review is not “whether [a] new fact already existed before […] original proceedings or during such proceedings” but, rather, “whether the deciding body and the moving party knew about the fact or not” in arriving at its decision;[4]

CONSIDERING that, in “wholly exceptional circumstances”, review may still be permitted even though the “new fact” was known to the moving party or was discoverable by it through the exercise of due diligence if a Chamber is presented with “a new fact that is of such strength that it would affect the verdict”[5] and determines that “review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice”;[6]

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

[3] 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) (“Blaškić Decision”), para. 7. See also Mladen Naletilić, a.k.a “Tuta” v. Prosecutor, Case No. IT-98-34-R, Decision on Mladen Naletilić’s Request for Review, 19 March 2009 (“Naletilić Decision”), para. 10; 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 (“Rutaganda Decision”), para. 8.

[4] Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 8 August 2002 (“Tadić Decision”), para. 25. See also Naletilić Decision, para. 11; Rutaganda Decision, para. 9.

[5] Tadić Decision, para. 27 (emphasis added). See also Rutaganda Decision, para. 8; Blaškić Decision, para. 8.

[6] Blaškić Decision, para. 8 (citation omitted). See also Naletilić Decision, para. 10; Rutaganda Decision, para. 8; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), paras 63-69.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

12. The Appeals Chamber recalls that review proceedings are provided for by Article 26 of the Statute, and that according to Rules 119 and 120 of the Rules, if the Appeals Chamber determines that a judgement should be reviewed, it shall “pronounce a further judgement after hearing the parties.”[1]

[1] Rule 120 of the Rules.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

At para. 8 of its Decision, the Appeals Chamber recalled the standard applicable to Trial Chambers’ decision on trial management:

8. It is well established in the jurisprudence of the International Tribunal that Trial Chambers exercise discretion in relation to trial management.[1] The Trial Chamber’s decision in this case to reduce the time allocated to the Prosecution for the presentation of its evidence was a discretionary decision to which the Appeals Chamber accords deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber has abused its discretionary power by committing a discernible error.[3] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[4]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”) para. 4; Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision on the Assignment of Defence Counsel”) para. 9; Prosecutor v. Milošević, Case No. IT-02-54-AR73, Reasons for Refusal of Leave to Appeal from Decision to Impose Time Limit, 16 May 2002 (“Milošević Decision to Impose Time Limit”), at para. 14: “The prosecution concedes, correctly, that the decision by the Trial Chamber to impose a time limit within which the prosecution was to present its case was a discretionary one.”

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Milošević Decision on Defense Counsel, para. 9.

[3] Prlić Decision on Cross-Examination, p. 3 citing Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 4: “Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”, see also paras 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[4] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Stanišić Provisional Release Decision, para. 6 & n. 10. The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations . . . .” Ibid

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Notion(s) Filing Case
Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

12.     Where an appeal is filed against a decision denying a request for revocation of a referral, the issue before the Appeals Chamber is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but whether the Referral Bench has correctly exercised its discretion in reaching that decision.[1] A party challenging such a decision must show that the Referral Bench: (i) misdirected itself either as to the legal principle to be applied, or as to the law which is relevant to the exercise of its discretion; (ii) gave weight to irrelevant considerations or failed to give sufficient weight to relevant considerations; (iii) made an error as to the facts upon which it has exercised its discretion; or (iv) its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[2]

[1] See Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 28 March 2007 (“Kovačević Rule 11bis Decision”), para. 9, citing Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11bis, 7 April 2006 (“Mejakić et al. Rule 11bis Decision”), para. 10. See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006 (“Ljubičić Rule 11bis Decision”), para. 6.

[2] See Uwinkindi Rule 11bis Decision, para. 23; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5, citing The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5; Kovačević Rule 11bis Decision, para. 9; Ljubičić Rule 11bis Decision, para. 6; Mejakić et al. Rule 11bis Decision, para. 10.

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ICTY Rule Rule 11 bis IRMCT Rule Rule 14
Notion(s) Filing Case
Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

5. The Trial Chamber has the discretion to decide whether to refer a case to a national jurisdiction and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[1] As the Appeals Chamber has previously stated:

An appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

These provisions were reiterated verbatim in two subsequent decisions – The Prosecutor v. Gaspard Kanyarugika, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-E11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5.

[1] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

[2] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision on Reopening Appeal - 07.06.2007 STRUGAR Pavle
(IT-01-42-Misc.1)

21. [… ] The Decision Accepting Withdrawals can be considered a “final judgement” for purposes of Article 26 because it “terminates the proceedings”.[1]  Strugar nowhere suggests, however, that he is bringing a motion for review, and he fails to address how he satisfies the basic requirements for review.  He nowhere explains, for example, how an apparent legal impediment constitutes a “fact”[2] or how it can be deemed “new” where the matter of legal impediments was plainly at issue in the earlier proceedings.[3]  Accordingly, the Appeals Chamber does not consider the Defence Request to constitute a motion for review.

[1] Jean-Bosco Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Decision”), para. 49.

[2] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3 (rejecting the convicted person’s argument that a change in the governing legal standard constituted a “new fact” of “an evidentiary nature”).

[3] See ibid. [Prosecutor v. Goran Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3] (stating that the term “new fact” refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”).

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Review Decision - 31.10.2006 RADIĆ Mlađo
(IT-98-30/1-R.1)

At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings:

9. Review proceedings are governed by the following provisions of the Statute and Rules:

Article 26 of the Statute provides that:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Rule 119 deals with the request for review and stipulates that:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

Rule 120 provides for a preliminary examination and states that:

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.

10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that:

there is a new fact;

the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;

the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and

the new fact, if proved, could have been a decisive factor in reaching the original decision.[1]

11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review:

the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3]

[1] Prosecutor v. Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review (“Niyitegeka Review”), para. 6; Prosecutor v. Josipović, Case No. IT-95-16-R.2, Decision on Motion for Review, 7 March 2003 ("Josipović Review"), para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 ("Delić Review"), para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, ("Tadić Review"), para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, ("Barayagwiza Review"), para 41.

[2] Josipović Review, para. 13 citing Barayagwiza Review, para. 65. See also Niyitegeka Review, para. 7.

[3] Tadić Review, para 27.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
Notion(s) Filing Case
Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

5. The Trial Chamber has the discretion to decide whether to refer a case to a national jurisdiction and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[1] As the Appeals Chamber has previously stated:

An appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

These provisions were reiterated verbatim in two subsequent decisions – The Prosecutor v. Gaspard Kanyarugika, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-E11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5.

[1] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

[2] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

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Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

1.  The Appeals Chamber was seized for the first time of an appeal from a decision modifying the terms of a provisional release. While the Prosecution was putting forward arguments going to the provisional release itself, the Appeals Chamber noted that the Prosecution never appealed against the original decision but was only appealing against the decision modifying the terms of release. It therefore held that, being seized of the decision modifying the conditions of the provisional release and not of the original decision granting such provisional release, “[r] egardless of the decision today, the Accused will remain on provisional release, at the very least according to the terms of the Original Provisional Release Decision.” (para. 25). See also paras 40, 42, 56. 

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

The standard of review for discretionary decisions had been set in previous decisions. The Appeals Chamber, in the present case, re-stated it clearly and applied it to decisions on provisional release:

21. The Trial Chamber’s decision on provisional release is a discretionary one, so the Appeals  Chamber, on review, must ask not whether it agrees with the decision but whether the Trial Chamber “correctly exercised its discretion in reaching that opinion”.[1]

22. The party challenging a provisional release decision bears the burden of showing that the Trial Chamber committed a “discernible error”.[2] In order to do so, it must show either that  the Trial Chamber (1)  “misdirected itself […] as to the principle to be applied”; (2) misdirected itself “as to the law which is relevant to the exercise of discretion”; (3) “gave weight to extraneous or irrelevant considerations”; (4) “failed to give weight or sufficient weight to relevant considerations”; (5)  “made an error as to the facts upon which it has exercised its discretion”; [3] or (6) rendered a decision “so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[4]

23. The Appeals Chamber has also ruled that a Trial Chamber must provide a reasoned opinion in rendering a decision on provisional release.[5] The Trial Chamber must therefore “indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision”, in light of circumstances obtaining both at the time of the provisional release decision and “at the time the case is due for trial and the accused is expected to return to the International Tribunal”.[6]

[1] Prosecutor v. Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Rule 65 Decision”), para. 6, quoting Prosecutor v. Milošević, Case Nos IT-99-37-AR73, IT-01-50-AR73 and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), paras 3-4.

[2] Ibid.

[3] To warrant reversal, such an error of fact must be “patently incorrect”. Ibid., quoting Milošević Decision on Joinder, para. 10.

[4] Prosecutor v. Tolimir et al., Case No. IT-04-80-AR65.1, Decision on Interlocutory Appeal Against Trial Chamber’s Decisions Granting Provisional Release, 19 October 2005 (“Tolimir Decision”), para. 4.

[5] See, e.g., Stanišić Rule 65 Decision, para. 8.

[6] Ibid.

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

473. Pursuant to Article 24 of the Statute the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. Where additional evidence has been admitted on appeal, the Appeals Chamber is required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.[1] In accordance with Rule 118(A) of the Rules and the relevant jurisprudence,[2] the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction  where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?[3] Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.

[1] The Appeals Chamber could have remitted the case to the Trial Chamber for it to consider any new evidence. In the instant case, the Appeals Chamber decided to rule on the matter (Kupreskic Appeal Judgement, para. 70).

[2] See mainly Kupreskic and Musema Appeal Judgements.

[3] Musema Appeal Judgement, paras. 185 and 186; Kupreskic Appeal Judgement, paras. 75 and 76.

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Notion(s) Filing Case
Decision on Consolidated Motion - 08.12.2006 RUTAGANDA George
(ICTR-96-03-R)

8. Review proceedings are governed by Article 25 of the Statute and Rules 120 and 121 of the Rules. Review of a final judgement is an exceptional procedure and is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal.[1] Review may be granted only when the moving party satisfies the following cumulative criteria: (1) there is a new fact; (2) the new fact was not known to the moving party at the time of the original proceedings; (3) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (4) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may grant review, even where the second or third criteria are not satisfied, if ignoring the new fact would result in a miscarriage of justice.[3]

9. The Appeals Chamber recalls that a “new fact” refers to new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings.[4] By the phrase “not in issue”, the Appeals Chamber has held that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[5] In other words, what is relevant is whether the deciding body knew about the fact or not in arriving at the decision.[6]

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006, paras 5-7 (“Niyitegeka Review Decision”). See also Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43 (“Barayagwiza Review Decision”).

[2] Niyitegeka Review Decision, paras 5-7. See also Blaškić Review Decision [ Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006], para. 7; The Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8 (“Žigić Review Decision”); The Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras 9-11 (“Radić Review Decision”).

[3] Niyitegeka Review Decision, para. 7; Blaškić Review Decision, para. 8; Radić Review Decision, para. 11; The Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002, paras 26, 27 (“Tadić Review Decision”).

[4] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[5] Niyitegeka Review Decision, para. 6. See also Blaškić Review Decision, paras 14, 15; Tadić Review Decision, para. 25.

[6] Blaškić Review Decision, para. 14.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121;
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ICTY Rule Rule 119;
Rule 120;
Rule 121
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Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

36. [T]he notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B). This was recognised by Trial Chamber II’s decision in Kunarac.  The test applied in that case was correctly stated to be “whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’”.[1] […]

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which “the evidence is insufficient to sustain a conviction” means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,[2] is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalić appeal judgement, where it said: “[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.[3] The capacity[4] of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could.  At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

See also paras. 33–35, 68.

[1] Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T, IT-23-1-T, Decision on motion for acquittal, 3 July 2000 (“the Kunarac decision”), para. 3, p. 3 (emphasis in original). And see, ibid., paras 7 - 8, pp. 4-5.

[2] As to the permissibility of drawing inferences at the close of the case for the prosecution, see Monteleone v. The Queen [1987] 2 S.C.R. 154, in which McIntyre J., for the court, said: “It is not for the trial judge to draw inferences of fact from the evidence before him”.  And see the reference to “inferences” in Her Majesty v. Al Megrahi and Another, infra. Cf. Kvočka decision, para. 12, p. 5, in which the Trial Chamber said: “The Chamber prefers an objective standard, under which it is entitled at this stage to apply any reasonable inferences and presumption or legal theories when reviewing the Prosecution evidence”.  The issue thus posed is not passed upon here.

[3]Delalić appeal judgement, para. 434, p. 148 (emphasis in original).  Or, as it was correctly put by Trial Chamber II in the Kunarac decision, para. 10, p. 6, the “prosecution needs only to show that there is evidence upon which a reasonable tribunal of fact could convict, not that the Trial Chamber itself should convict” (emphasis in original).

[4] According to MacKinnon A.C.J.O. in R. v. Syms (1979) 47 C.C.C. (2d) 114 at 117, a trial judge should withdraw a case from the jury only where “the evidence was so slight or tenuous that it would be incapable of supporting a verdict of guilty”.

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Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

21. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and Rules 120 and 121 of the Rules. The Appeals Chamber strongly emphasizes that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] In order for review to be granted, the moving party must show that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may nonetheless grant review, even where the new fact was known to the moving party at the time of the original proceedings or the lack of discovery of the fact was the result of a lack of due diligence by the moving party, if ignoring the new fact would result in a miscarriage of justice.[3]

[1] Decision on Third Request for Review, 23 January 2008 (“Third Review Decision”), para. 13; 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 (“Rutaganda Review Decision”), para. 8. See also First Review Decision, paras. 5-7; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43.

[2] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; First Review Decision, paras. 5-7. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R,  Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras. 9-11; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (“Tadić Review Decision”), para. 20.

[3] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; Blaškić Review Decision, para. 8; Tadić Review Decision, paras. 26, 27. 

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

52. The Appeals Chamber recalls that when a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the trial chamber violated a provision of the Statute and/or the Rules and that this violation caused prejudice which amounts to an error of law invalidating the trial judgement.[1] […] The Appeals Chamber would only reverse such a decision [related to the general conduct of trial proceedings] where it was demonstrated that the Trial Chamber committed a discernible error in rendering the decision, based on an incorrect interpretation of the governing law or a patently incorrect conclusion of fact, or where the decision was so unfair or unreasonable so as to constitute an abuse of the Trial Chamber’s discretion.[2]

[1] Haradinaj et al. Appeal Judgement, para. 17; Krajišnik Appeal Judgement, para. 28.

[2] See, e.g., Kalimanzira Appeal Judgement, para. 14; Rukundo Appeal Judgement, para. 147.

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Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

9. The appeals chamber recalls that an appeal against an acquittal entered at the Rule 98 bis stage of a case is an appeal against a judgement.[1] Thus, in an appeal of a rule 98 bis judgement of acquittal, the proceedings are governed by Article 25 of the Statute and by the standards of appellate review for alleged errors of law and alleged errors of fact. The Appeals Chamber further recalls that the test to be applied by the trial chamber at the Rule 98 bis stage is “whether there is evidence (if accepted) upon which a reasonable [trier] of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”,[2] not whether an accused’s guilt has been established beyond reasonable doubt.[3]

10. The Appeals Chamber does not consider that the parties’ relevant submissions impel adoption of a different standard of review. The passage in the Halilović Appeal Judgement which Karadžić discusses simply confirms that appeals challenging factual findings shall be subject to the same standard of deferential review whether the appeals are lodged by the Prosecution or by a convicted person.[4] The Appeals Chamber’s holding in Halilović does not demonstrate that judgements of acquittal pursuant to Rule 98 bis of the Rules are exclusively reviewed under the standard of review for alleged errors of fact, as Karadžić appears to argue. Likewise, and contrary to the Prosecution’s submission, the Jelisić Appeal Judgement does not hold that the Appeals Chamber must always engage in an evidentiary assessment de novo when reviewing a challenge to a Rule 98 bis judgement of acquittal. In Jelisić, the Appeals Chamber merely concluded that the trial chamber had erred as a matter of law at the Rule 98 bis stage of a trial by failing to take the evidence at its highest, and, in view of this conclusion, proceeded to articulate the correct standard and apply that standard to the evidence on the record.[5]

[1] [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1] Decision on Motion to Strike Prosecution’s Brief, 9 November 2012, para. 8. See generally Rule 98 bis of the Rules.

[2] Čelibići Appeal Judgement, para. 434 (emphasis in original). See also Jelisić Appeal Judgement, para. 37.

[3] See Jelisić Appeal Judgement, para. 56.

[4] See Halilović Appeal Judgement, para. 11.

[5] Jelisić Appeal Judgement, paras 55-72. See also Jelisić Appeal Judgement, para. 39. 

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Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

37. The Appeals Chamber recalls that a judgement of acquittal shall only be entered pursuant to Rule 98 bis of the Rules “if there is no evidence capable of supporting a conviction”.[1] Moreover, the Appeals Chamber recalls that pursuant to Rule 98 bis of the Rules, a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[2] The Appeals Chamber notes that the evidence reviewed by the Trial Chamber, taken at its highest, indicates that Bosnian Muslims and/or Bosnian Croats suffered injuries, including rape and severe non-fatal physical violence which are, on their face, suggestive of causing serious bodily harm.[3] While the commission of individual paradigmatic acts does not automatically demonstrate that the actus reus of genocide has taken place, the Appeals Chamber considers that no reasonable trial chamber reviewing the specific evidence on the record in this case, including evidence of sexual violence and of beatings causing serious physical injuries,[4] could have concluded that it was insufficient to establish the actus reus of genocide in the context of Rule 98 bis of the Rules. Accordingly, the Trial Chamber failed to take the evidence at its highest.

[1] Rule 98 bis of the Rules. See also supra [Judgement], para. 9.

[2] Jelisić Appeal Judgement, para. 55.

[3] Seromba Appeal Judgement, para. 46. See also Seromba Appeal Judgement, para. 48 (referring to “heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture”).

[4] See supra [Judgement], nn. 86-107. 

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
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Decision on Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

After recalling the case-law on judicial notice of facts of common knowledge,[1] the Appeals Chamber held:

23. Whether a fact qualifies as a “fact of common knowledge” is a legal question.  By definition, it cannot turn on the evidence introduced in a particular case, and so the deferential standard of review ordinarily applied by the Appeals Chamber to the Trial Chamber’s assessment of and inferences from such evidence has no application. Mr. Nzirorera suggests that the Appeals Chamber should defer to the Trial Chamber’s discretion as to “admissibility of evidence” and “the manner in which facts are to be proven at trial”.[2] But the general rule that the Trial Chamber has discretion in those areas is superseded by the specific, mandatory language of Rule 94(A); as noted above, the Trial Chamber has no discretion to determine that a fact, although “of common knowledge”, must nonetheless be proven through evidence at trial.  For these reasons, a Trial Chamber’s decision whether to take judicial notice of a relevant[3] fact under Rule 94(A) is subject to de novo review on appeal.

[1] Decision, para. 22, referring to Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 194.

[2] Nzirorera’s Response, para. 41-42.

[3] As Mr. Nzirorera suggests, see Nzirorera’s Response, para. 41, a Trial Chamber is not obligated to take judicial notice of facts that are not relevant to the case, even if they are “facts of common knowledge”.  Of course, it remains the case that the Trial Chamber “shall not require proof” of such facts, see Rule 94(A), since evidence proving an irrelevant fact would in any event be inadmissible under Rule 89(C) of the Rules.  Cf. Prosecutor v. Hadzihasanović and Kubura, Case No. IT-01-47-T, Final Decision on Judicial Notice of Adjudicated Facts, 20 April 2004 (holding that “before taking judicial notice of these four Definitively Proposed Facts the Chamber is obliged to verify their relevance, pursuant to Rule 89(C) of the Rules”).  Relevance determinations are circumscribed by various standards of law, but within the appropriate legal framework the Trial Chamber enjoys a margin of discretion.

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 304-306, the Appeals Chamber recalled the law applicable to circumstantial evidence, as enounced in the Čelebići Appeal Judgement and recently confirmed in Stakić:

304.    In the Čelebići Appeal Judgement, the ICTY Appeals Chamber set out the standard of proof applicable to circumstantial evidence as follows:

A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him – here that he participated in the second beating of Gotovac. Such a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

The same standard was applied in theVasiljević, Krstić and Kvočka et al. Appeal Judgements in relation to the establishment of the state of mind of the accused by inference and, more recently, in the Stakić Appeal Judgement.

305.    As the ICTY Appeals Chamber made clear in the Kordić and Čerkez Appeal Judgement, the Čelebići standard on circumstantial evidence has to be distinguished from the standard of appellate review. The Appeals Chamber notes that the Tribunal’s law on appellate proceedings, namely wheter “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[5]

306.    It is settled jurisprudence that the conclusion of guilt can be inferred from circumstantial evidence only if it is the only reasonable conclusion available on the evidence. Whether a Trial Chamber infers the existence of a particular fact upon which the guilt of the accused depends from direct or circumstantial evidence, it must reach such a conclusion beyond reasonable doubt. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the non-existence of that fact, the conclusion of guilt beyond reasonable doubt cannot be drawn.

[1] Čelebići Appeal Judgement, para. 458.

[2] Vasiljević Appeal Judgement, para. 120; Krstić Appeal Judgement, para. 41; Kvočka et al. Appeal Judgement, para. 237.

[3] Stakić Appeal Judgement, para. 219.

[4] Kordić and Čerkez Appeal Judgement, paras. 289-290.

[5] Ibid., para. 288.

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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. 

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Rule 121
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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.

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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
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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

99. […] Rule 94(A) of the Rules states: “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.” This standard is not discretionary; if a Trial Chamber determines that a fact is “common knowledge”, it must take judicial notice of it.[1] […]

[1] Karemera et al., Decision on Judicial Notice [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], para. 22.

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Decision on Challenge by Croatia - 29.11.2002 BOBETKO Janko
(IT-02-62-AR54bis & IT-02-62-AR108bis)

11. [...] Rule 108bis was adopted to permit States directly affected by an interlocutory decision to seek a review where it is claimed that an interlocutory decision of a Trial Chamber has impacted upon its legal rights, such as when a State is ordered to produce documents or records from its archives. This provision is not available where the State claims that its legitimate political interests have been affected, or where it has a genuine concern that the facts alleged in the indictment are historically accurate.[] The time for the investigation into the truth of the facts alleged in an indictment does not arise until the trial.

12. Article 29 of the Tribunal’s Statute provides that all States shall cooperate with the Tribunal and comply without undue delay with any request for assistance or order issued by this Tribunal. In particular, Article 29(d) expressly provides that this general obligation includes a duty to comply with any such request or order relating to “the arrest or detention of persons”. Croatia’s role in complying with such a request or order is the purely ministerial one of executing the warrants and carrying out such arrest and detention as ordered by the Tribunal. A State which is ordered to arrest or detain an individual pursuant to Article 29(d) has no standing to challenge the merits of that order. 

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule
108 bis
ICTY Rule Rule
108 bis
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Review Decision - 25.08.2006 ŽIGIĆ Zoran
(IT-98-30/1-R.2)

8. To establish circumstances warranting a review pursuant to Rule 119, the moving party must demonstrate that there is a new fact, that that new fact was not known to the moving party at the time of the original proceedings, that lack of discovery of that new fact was not the result of lack of due diligence by the moving party and that the new fact could have been a decisive factor in reaching the original decision.[1]

[1] Prosecutor v. Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003, para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, para. 41;  Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006.

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Decision on Interlocutory Appeal - 30.10.2006 ZIGIRANYIRAZO Protais
(ICTR-01-73-AR73)

The ICTR Appeals Chamber recalled the following:

9. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. A Trial Chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

[1] The Prosecutor v. Théoneste Bagosora et al., Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, Case No. 98-41-AR73, 25 September 2006, para. 6 (“Bagosora Appeal Decision”); Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-AR73(C), Decision on Interlocutory Appeal, 29 May 2006, para. 5 (“Muvunyi Appeal Decision”).

[2] Bagosora Appeal Decision, para 6; Muvunyi Appeal Decision, para. 5. See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 3.

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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

13. The Appeals Chamber recalls that facts judicially noticed pursuant to Rule 94(B) of the Rules are merely presumptions that may be rebutted with evidence at trial.[1] The legal effect of judicially noticing an adjudicated fact is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may put the adjudicated fact into question by introducing evidence to the contrary.[2]

[1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“Dragomir Milošević Appeal Decision”), para. 16, citing Karemera et al. Appeal Decision on Judicial Notice, para. 42;  See also Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Appeal Decision”), para. 11; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003 (“Slobodan Milošević Appeal Decision”), p. 4.

[2] Dragomir Milošević Appeal Decision, para. 16; Karemera et al. Appeal Decision on Judicial Notice, paras. 42, 49. 

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Decision on Right to Be Present - 05.10.2007 KAREMERA et al.
(ICTR-98-44-AR73.10)

7. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. The Impugned Decision, which ruled on the right of the accused to be present at trial, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] A Trial Chamber’s exercise of discretion will thus be reversed only if the Appellant demonstrates that the Trial Chamber made a discernible error in the Impugned Decision because it was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

[1] See The Prosecutor v. Élie Ndayambaje et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeals against the Decision of Trial Chamber II of 21 March 2007 concerning the Dismissal of Motions to Vary his Witness List, 21 August 2007 (“Kanyabashi Decision”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, 11 May 2007, para. 3; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision”), para. 9.

[2] Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 4; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 9.

[3] See Kanyabashi Decision, para. 10; Zigiranyirazo Decision, para. 9.

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Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The Appeals Chamber held in paragraph 19 of the decision that:

19. Rules 15bis (D) of the Rules confers on the remaining Judges the discretion to determine whether to continue the trial proceedings with a substitute Judge. In exercising this discretion, the remaining Judges have “the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered”.[1] The Appeals Chamber has previously stated that it can only intervene in this decision-making process in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the remaining Judges failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected.[2] It is not enough to show that the Appeals Chamber would have exercised the discretion differently.[3]

[1] The Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje, Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003 (“Butare Decision”), para. 23.

[2] Butare Decision, para. 23.

[3] Butare Decision, para. 23.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

21. The Appeals Chamber reiterates that an appeal is not a trial de novo.  In making its assessment, the Appeals Chamber will in principle only take into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal.[1]

See also Separate Opinion of Judge Weinberg de Roca.

[1] To hold otherwise would mean to hold a trial de novo before the Appeals Chamber merely based on documentary evidence including transcripts. It is only the impugned judgement and the submissions of the parties, both including references to the trial record, that is before an Appeals Chamber. The Appeals Chamber notes that it is not obliged by Rule 109 of the Rules to review proprio motu the entire trial record. Otherwise, the Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002, would become meaningless when ordering the parties in its para. 13: “Where filings of the parties refer to passages in a judgement, decision, transcripts, exhibits or other authorities, they shall indicate precisely the date, exhibit number, page number and paragraph number of the text or exhibit referred to”. This Practice Direction can only confirm and concretize existing law under Article 25 of the Statute. See already Vasiljević Appeal Judgement, para. 11, footnote 13, to be read together with footnotes 11-12 and 15. Furthermore, it is settled jurisprudence of the International Tribunal that it is the trier of fact who is best placed to assess the evidence in its entirety as well as the demeanour of a witness. The Appeals Chamber would act ultra vires when reviewing proprio motu the entire trial record.

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Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

19.       The Appeals Chamber notes that, in its Rule 98bis Decision, the Trial Chamber correctly recalled the applicable law.[1] With respect to Counts 1 and 5 of the Indictment, the Trial Chamber found that there was “evidence which, if accepted, could satisfy a reasonable trier of fact of Ngirabatware’s guilt beyond a reasonable doubt”.[2] In the Trial Judgement, the Trial Chamber granted the Prosecution’s request to withdraw the charge of conspiracy to commit genocide under Count 1,[3] and acquitted Ngirabatware of extermination as a crime against humanity under Count 5 of the Indictment.[4] In arguing that this is indicative of an error in the standard of proof applied by the Trial Chamber in its Rule 98bis Decision, Ngirabatware conflates the various evidentiary thresholds. As recalled above, a judgement of acquittal shall only be entered pursuant to Rule 98bis of the ICTR Rules if the evidence is insufficient to sustain a conviction. At that stage a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[5] In contrast, pursuant to Rule 87 of the ICTR Rules, at the end of the trial a trial chamber may reach a finding of guilt only if it is satisfied that the guilt of the accused has been proved beyond reasonable doubt.

20.       The standard “‘beyond reasonable doubt’ connotes that the evidence establishes a particular point and it is beyond dispute that any reasonable alternative is possible.”[6] It requires that the trial chamber be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[7] Accordingly, a dismissal of a request for a judgement of acquittal on a particular count at the close of the Prosecution case-in-chief is not incompatible with an acquittal of the accused on that same count at the end of the trial. In the same vein, a Prosecution’s decision to withdraw a charge at the end of the trial does not demonstrate that the evidence was insufficient to sustain a conviction in relation to that charge at the close of the Prosecution case-in-chief.[8] Ngirabatware thus fails to show that the Trial Chamber erred in law or fact in failing to grant his Rule 98bis Motion in relation to Counts 1 and 5 of the Indictment.[9]

[1] Rule 98bis Decision [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Judgement of Acquittal, 14 October 2010], paras. 22-23, 25.

[2] Rule 98bis Decision, paras. 32, 46.

[3] Trial Judgement, para. 17.

[4] Trial Judgement, para. 1379.

[5] Karad`ić Rule 98bis Judgement [Prosecutor v. Radovan Karad`ić, Case No. IT-95-5/18-AR98bis.1, Judgement, 11 July 2013 ], para. 21, citing Jelisi} Appeal Judgement, para. 55.

[6] Mrk{i} and [ljivan~anin Appeal Judgement, para. 220.

[7] D. Milo{evi} Appeal Judgement, para. 20, citing Mrk{i} and [ljivan~anin Appeal Judgement, para. 220. See also Martić Appeal Judgement, para. 61.

[8] Concerning Ngirabatware’s submission that the Prosecution impermissibly proceeded in relation to Count 1 (See Appeal Brief [Dr. Ngirabatware’s Appeal Brief (confidential), 18 June 2013; Corrigendum to Dr. Ngirabatware’s Appeal Brief (confidential), 16 July 2013; Dr. Ngirabatware’s Appeal Brief (amended public redacted version), 1 August 2013], para. 273), the Appeals Chamber notes that Ngirabatware fails to show that the Prosecution did not intend to prove this count in the course of the trial. See Ntakirutimana Appeal Judgement, para. 43.

[9] The Appeals Chamber need not address Ngirabatware’s submission that the Trial Chamber erred in the Rule 98bis Decision by failing to provide a reasoned opinion in relation to Count 5 of the Indictment, as the alleged error does not impact on Ngirabatware’s conviction. See Reply Brief [ Dr. Ngirabatware’s Brief in Reply to Prosecution Respondent’s Brief (Pursuant to Rule 140 of the Rules of Procedure and Evidence), 13 August 2013], para. 106(ii).

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ICTR Rule Rule 98 bis
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Appeal Judgement - 16.11.2001 MUSEMA Alfred
(ICTR-96-13-A)

185.   In Kupreškić, the Appeals Chamber of ICTY stated the role of the Appeals Chamber in cases where the factual findings of a Trial Chamber are likely to be reviewed in light of new evidence.  ICTY Appeals Chamber held in the above-mentioned case that:

“Where additional evidence has been admitted, the Appeals Chamber is then required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.”[1] 

“[…] miscarriage of justice may […] be occasioned where the evidence before a Trial Chamber  appears to be reliable but, in the light  of additional evidence presented upon appeal, is exposed as unreliable.  It is possible that the Trial Chamber may reach a conclusion of guilt based on the evidence presented at trial that is reasonable at the time […] but, in reality, is incorrect.”[2]

“[…] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.”[3]

186.   It is the Appeals Chamber’s view that such principles are also applicable before ICTR when the admission of new evidence entails a review of the Trial Chamber’s factual findings.  The Appeals Chamber finds this to be the case in this instance.

[1] Appeal Judgement, Prosecutor  v. Zoran Kupreškić  and others, Case No. IT-95-16-A, 23 October 2001, para. 72 (Kupreškić Appeal Judgement).

[2] Kupreškić Appeal Judgement, para. 44.

[3] Kupreškić Appeal Judgement; para. 75, see also para. 76.

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Appeal Judgement - 23.10.2001 KUPREŠKIĆ et al.
(IT-95-16-A)

75. […] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

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Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

426. The Appeals Chamber has granted in part a motion by Žigić to adduce additional evidence,[1] and has heard two additional witnesses and two rebuttal witnesses. In determining whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice, the Appeals Chamber has set out the applicable test in the Kupreškić et al. Appeal Judgement:

The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.[2]

In Blaskić, the Appeals Chamber cited and affirmed that test.  The Appeals Chamber noted that in the context of the Kupreškić case, the Appeals Chamber simply applied a deferential standard of review to the totality of the evidence admitted both at trial and on appeal, because the appellant had successfully established that no reasonable trier of fact could have reached a finding of guilt based on that evidence.[3]  However, as the Appeals Chamber in Blaškić further correctly noted, the Appeals Chamber in Kupreškić was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered together with the additional evidence admitted on appeal, “a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt.”[4]  In that case, the Appeals Chamber in Blaškić concluded that “it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”[5]  Consequently, the Appeals Chamber in Blaškić answered the question left open in Kupreškić, further developing the test first articulated therein. 

In reaching this conclusion, the Appeals Chamber in Blaškić underscored that such a standard of review is necessary in the interests of justice as well as for reasons of due process when considering a case before this International Tribunal because, if any lower standard were to be applied, “then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of the evidence relied upon in the case … be reached by either Chamber beyond reasonable doubt.”[6]    

The Appeals Chamber in Blaškić indicated, when summarizing the above test, the following two steps in a case where an error of fact is alleged and additional evidence proffered by the Defence is admitted: 

(i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.[7]

(ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.[8]

427. It has of course to be borne in mind that, as the Appeals Chamber has noted several times, the task of hearing, assessing and weighing the evidence is left primarily to the Trial Chamber:

The reason that the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known. The Trial Chamber has the advantage of observing witnesses in person and so is better positioned than the Appeals Chamber to assess the reliability and credibility of the evidence. Accordingly, it is primarily for the Trial Chamber to determine whether a witness is credible and to decide which witness’s testimony to prefer, without necessarily articulating every step of the reasoning in reaching a decision on these points.[9]

428. Therefore, the Appeals Chamber will uphold a conviction on the basis that a reasonable trier of fact could have arrived at a conviction on the evidence on the trial record in two cases:

(i) if there is no additional evidence admitted;

(ii) if additional evidence is admitted, but upon further review, is found to be not credible or irrelevant, so that it could not have been a decisive factor in reaching the decision at trial.[10]

See also Separate Opinion of Judge Weinberg de Roca and Separate Opinion of Judge Shahabuddeen.

[1] Decision on Appellants’ Motion to Admit Additional Evidence Pursuant to Rule 115, 16 February 2004.

[2] Kupreškić et al., Appeal Judgement, paras 75-76

[3] Blaškić Appeal Judgement, para. 22.  Cf. Musema Appeal Judgement, paras. 184-194.  In Musema, the Appeals Chamber applied that same deferential standard of review in quashing the accused’s conviction for rape because it found that on the basis of the totality of the evidence, a trier of fact would have reasonable doubt as to the accused’s guilt.      

[4] Blaškić Appeal Judgement, para. 23.

[5] Ibid.

[6] Ibid.

[7] The Appeals Chamber notes that this is a summary of the test developed in para. 23 of the Blaškić Appeal Judgement and must therefore be read taking into consideration the entire context of the decision with regard to this holding.  In light of the affirmation of the test first articulated in the Kupreškić Appeal Judgement and the reasoning found in paras 22-23 of the Blaškić Appeal Judgement, the Appeals Chamber considers that the Appeals Chamber in Blaškić obviously considered that if such a determination is also reached on the basis of the trial record taken together with the evidence admitted on appeal, then no further examination of the matter is needed.  

[8] Blaškić Appeal Judgement, para. 24(c). 

[9] Kupreškić et al. Appeal Judgement, para. 32 (footnote omitted). This was confirmed by Blaškić Appeal Judgement, para. 17.

[10] See e.g. Kupreškić et al. Appeal Judgement, paras 338-348.  In Kupreškić, the Appeals Chamber considered the testimony of Witness AT, admitted as additional evidence under Rule 115, as it pertained to Drago Josipović’s appeal.  The Appeals Chamber concluded that because Witness AT could not bring himself to tell the truth about his own involvement in the Ahmići attack and because Witness AT’s wife was a close relative of Josipović, Witness AT’s evidence was “so unreliable” as to Josipović’s appeal that it was incapable of making his conviction for participation in the attack on Ahmići unsafe.  Thus, the Appeals Chamber in Kupreškić did not need to take into consideration this additional evidence together with the evidence before the Trial Chamber and simply reviewed the safety of Josipović’s conviction on the basis of whether a reasonable trier of fact could have convicted him on the basis of the trial record alone.  It is true that the Appeals Chamber in Kupreškić then proceeded to assess Witness AT’s testimony together with the trial record as if it theoretically was reliable evidence and concluded that, even then, it would not challenge the safety of Josipović’s conviction.  However, the Appeals Chamber considers that this latter analysis was pure dicta given that Witness AT’s evidence had already been rejected as “so unreliable” by the Appeals Chamber in Kupreškić that it did not need to be considered any further with regard to reviewing Josipović’s conviction.  See also Rutaganda Appeal Judgement, paras.  473-489, wherein the Appeals Chamber found that the additional evidence admitted in support of the accused’s alibi was insufficiently probative for challenging the accused’s conviction because the evidence so lacked credibility.  The Appeals Chamber came to this conclusion because the evidence consisted of a personal opinion that was formulated upon underlying information that appeared to have no relevance for establishing that alibi.          

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

9. “The Appeals Chamber recalls that a decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is a discretionary one.”[1]  Therefore, “the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.”[2]

[1] Prosecutor v. Mitar Rašević and Savo Todović, Case Nos. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals Against Decisions on Referral under Rule 11bis, 4 September 2006 (“Todović Decision of 4 September 2006”), para. 8.

[2] Todović Decision of 4 September 2006, para. 8.

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Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

Background: the Prosecution disclosed to the Defence a judgement of a Rwandan court that implicated a Prosecution witness right before that witness testified. The Defence requested that the Trial Chamber stay the proceedings. In the present interlocutory appeal, the Appellant (Defence) argued that the Trial Chamber erred as a matter of law by failing to provide him with adequate time and facilities to prepare his defence in violation of his rights under Article 20(4)(b) of the Statute.

The Appeals Chamber recalled the standard of review with regard to adjournment and found that the Trial Chamber did not abuse its discretion in finding that, in the circumstances of the case, no prejudice resulted from the late disclosures. The Appeals Chamber held that a Trial Chamber can “control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights”.

See paras 7-8:

7. The Prosecution’s obligation to disclose potentially exculpatory material is essential to a fair trial.[1] However, not every violation of this important obligation implicates a violation of an accused’s fair trial rights, warranting a remedy.[2] If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves.[3] The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.[4]

8. Mr. Nzirorera raised the issue of his need for investigations arising from the late disclosure before the Trial Chamber.[5] In the Impugned Decision, the Trial Chamber expressly considered the impact of the late disclosure on Mr. Nzirorera’s ability to prepare for Witness UB’s testimony and determined that the late disclosure would not interfere with an effective cross-examination.[6] Furthermore, the Trial Chamber noted that it would provide appropriate additional relief on a case-by-case basis and indicated that it might be appropriate to recall the witness if further investigations warranted additional cross-examination.[7] In the present circumstances, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in declining to stay the proceedings. The Appeals Chamber considers that in long and complicated cases, it is necessary for a Trial Chamber to exercise its discretion to control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights.[8]

[1] The Prosecutor v. Théoneste Bagosora et al., ICTR Case Nos. 98-41-AR73, 98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44; The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, paras. 183, 242 (“Kordić and Čerkez Appeal Judgement”); The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 20 July 2004, para. 264 (“Blaškić Appeal Judgement”); The Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 180 (“Krstić Appeal Judgement”); The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Decision”).

[2] Kordić and Čerkez Appeal Judgement, para. 179 (“Once the Defence has satisfied a Chamber that the Prosecution has failed to comply with Rule 68, the Chamber, in addressing what is the appropriate remedy (if any) must examine whether or not the Defence has been prejudiced by a breach of Rule 68 […].”)(emphasis added). See also The Prosecutor v. Juvénal Kajelijeli, ICTR Case No. 98-44A-A, Judgement, 23 May 2005, para. 262 (Kajelijeli Appeal Judgement”); Blaškić Appeal Judgement, paras. 295, 303; Krstić Appeal Judgement, para. 153.

[3] Krstić Appeal Judgement, para. 206.

[4] The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 18.

[5]T. 13 February 2006 p. 16.

[6] Impugned Decision, p. 8.

[7] Impugned Decision, pp. 3, 8, 10.

[8] See Kordić and Čerkez Appeal Judgement, para. 196.

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ICTY Rule Rule 68 bis
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Decision on Jurisdiction - 06.06.2007 GOTOVINA et al.
(IT-06-90-AR72.1)

7. When reviewing a Trial Chamber’s decision on jurisdiction under Rule 72(B)(i) of the Rules, the Appeals Chamber will only reverse the decision “if the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant considerations or irrelevant considerations in an unreasonable manner.”[1] In reaching its decision, it is incumbent upon a Trial Chamber “to provide a reasoned opinion that, among other things, indicates its view on all those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2]

[1] Prosecutor v. Jadranko Prlić et. al, Case No. IT-04-74-AR72.1, Decision on Petković’s Interlocutory Appeal Against the Trial Chamber’s Decision on Jurisdiction, 16 November 2005 (“Prlić et al. Interlocutory Appeal on Jurisdiction”), para. 11 quoting Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 10.

[2] Prlić et al. Interlocutory Appeal on Jurisdiction, para. 11, with reference to Prosecutor v. Milan Milutinović, Case No. IT-99-37-AR65.3, Decision Refusing Milutinović Leave to Appeal, 3 July 2003, para. 22.

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Decision on Review - 17.01.2008 GOTOVINA et al.
(IT-06-90-AR108bis.2)

On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”.

5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and
(ii) that the decision concerns issues of general importance relating to the powers of the Tribunal.[1] Only when this two-pronged test is met will the Appeals Chamber consider the merits of the State request for review.[2]

6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3]

12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers.

13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner.

[1] Rule 108 bis (A); see Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review Under Rule 108bis, 13 December 2006 (“Gotovina First Review Decision”), para. 6.

[2] Id.

[3] Prosecutor v. Janko Bobetko, Case No. IT-02-62-AR54bis & IT-02-62-AR108bis, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002 (“Bobetko Decision”), para. 11; see also Gotovina First Review Decision, paras 7-8.

[4] See, e.g., Prosecutor v. Vujadin Popović, Case No. IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 10 (“The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant.  A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant, and in some circumstances, it may be reasonable to place little weight on a government guarantee.  Indeed, here the Trial Chamber did not err by failing to find the government guarantees determinative notwithstanding the issuing authorities’ track record regarding compliance.) (citation omitted and emphasis added); Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s Decision Denying Ljubomir Borovčanin Provisional Release, 1 March 2007, para. 16 (noting that “the reliability of such a guarantee must always be determined in relation to the circumstances of an individual accused in each case”) (emphasis added); Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 21 (observing that “the Trial Chamber duly considered the weight to be accorded to the guarantees in relation to the particular circumstances of the Appellant’s case”) (emphasis added).

[5] Cf. Gotovina First Review Decision, para. 8 and Bobetko Decision, para. 11.

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ICTY Rule Rule 108bis
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Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

18.     The Referral Chamber transferred Munyarugarama’s case to Rwanda pursuant to Rule 11bis of the ICTR Rules.[1] Rule 11bis of the ICTR Rules allows a designated trial chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. In assessing whether a State is competent within the meaning of Rule 11bis of the ICTR Rules to accept a case from the ICTR, a designated trial chamber must consider whether the accused will be accorded the fair trial rights set out in Article 20 of the ICTR Statute, whether the State in question has a legal framework which criminalizes the alleged conduct of the accused, and whether it provides an adequate penalty structure.[2] The penalty structure within the State must provide an appropriate punishment for the offences for which the accused is charged, and conditions of detention must accord with internationally recognized standards.[3]

19.     In considering an appeal from a decision under Rule 11bis of the ICTR Rules, the Appeals Chamber of the ICTR has stated:

The trial chamber has the discretion to decide whether to refer a case to a national jurisdiction, and the Appeals Chamber will only intervene if the trial chamber’s decision was based on a discernible error. To demonstrate such error, an appellant must show that the trial chamber: misdirected itself either as to the legal principle to be applied or as to the law which is relevant to the exercise of its discretion; gave weight to irrelevant considerations; failed to give sufficient weight to relevant considerations; made an error as to the facts upon which it has exercised its discretion; or reached a decision that was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the trial chamber must have failed to exercise its discretion properly.[4]

The Appeals Chamber of the Mechanism adopts this standard of review in considering the present appeal.

[1] Impugned Decision [The Prosecutor v. Phénéas Munyarugarama, Case No. ICTR-02-79-R11bis, Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda, 28 June 2012 ], pp. 15, 16.

[2] Uwinkindi Decision of 16 December 2011, para. 22; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 4 December 2008 (“Hategekimana Decision of 4 December 2008”), para. 4; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 30 October 2008 (“Kanyarukiga Decision of 30 October 2008”), para. 4. See also The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 9 October 2008 (“Munyakazi Decision of 9 October 2008”), para. 4.

[3] Uwinkindi Decision of 16 December 2011, para. 22; Hategekimana Decision of 4 December 2008, para. 4; Kanyarukiga Decision of 30 October 2008, para. 4; Munyakazi Decision of 9 October 2008, para. 4.

[4] Uwinkindi Decision of 16 December 2011, para. 23 (internal citations omitted).

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Rule 11bis Decision - 30.08.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

At para. 9, the Appeals Chamber of the ICTR, being seized for the first time of a Rule 11bis motion, applied the standard of review as set out by the ICTY Appeals Chamber.

9. This case is the first involving a referral under Rule 11bis in this Tribunal. However, the ICTY Appeals Chamber has considered referrals to national jurisdictions in cases under a similar legal framework.[1] Such case law is largely applicable in the context of this Tribunal as well. In assessing whether a state is competent within the meaning of Rule 11bis to accept one of the Tribunal’s cases, a designated Trial Chamber must consider whether it has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure.[2] The Trial Chamber’s decision on whether to refer a case to a national jurisdiction is a discretionary one, and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[3] Accordingly, an appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[4]

[1] The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Appeal Decision”); The Prosecutor v. Gojko Janković, Case No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005 (“Janković Appeal Decision”); Prosecutor v. Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral under Rule 11bis, 7 April 2006, (“Mejakić et al. Appeal Decision”); The Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006 (“Ljubičić Appeal Decision”).

[2] See Mejakić et al. Appeal Decision, para. 60.

[3] Ljubičić Appeal Decision, para. 6.

[4] Id.

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Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

The Appeals Chamber held (Decision, p. 3):

[…] in interlocutory appeals dealing with trial management rulings, the Appeals Chamber shall afford deference to the Trial Chamber’s discretion[1] and the examination by the Appeals Chamber shall be limited to establishing whether the Trial Chamber has fallen into error or has abused its discretionary power;[2]

[1] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4: “Deference is afforded to the Trial Chamber’s discretion in these decisions because they ‘draw on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.’”, citing Milošević Decision on the Assignment of Defence Counsel, para. 9.

[2] Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 4: “Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”, see also paras 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005, para. 6.

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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

122. The Appeals Chamber recalls that it has found, Judge Afanđe dissenting, that the Trial Chamber erred in law in failing to make the necessary findings on the existence and scope of a common criminal purpose shared by a plurality of persons.[1] The Appeals Chamber further recalls that it has found, Judge Agius and Judge Afanđe dissenting, that the Trial Chamber erred in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[2] In accordance with the well-established standard of appellate review, where the Appeals Chamber finds an error of law in the trial judgement arising from the application of a wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.[3]

123. In light of the nature and scale of the errors of law identified by the Appeals Chamber in this case, Judge Agius dissenting with respect to the Error on Aiding and Abetting Liability and Judge Afanđe dissenting with respect to the Error on JCE Liability and the Error on Aiding and Abetting Liability, were the Appeals Chamber to conduct its own review of the relevant factual findings of the Trial Chamber, applying the correct legal standards, it would first have to turn to the Error on JCE Liability and make findings on the existence and scope of a common criminal purpose shared by a plurality of persons and then proceed to assess Stanišić’s and Simatović’s contribution and intent for JCE liability. Depending on the result of such an analysis, the Appeals Chamber might then have to turn to the Error on Aiding and Abetting Liability.

124. However, the Appeals Chamber, Judge Afanđe dissenting, is of the view that it would be inappropriate to conduct this analysis as it would have to analyse the entire trial record without the benefit of having directly heard the witnesses in order to determine whether it is itself satisfied with respect to the requirements of JCE liability and, depending on the result of such an analysis, with respect to the requirements of aiding and abetting liability. Indeed, the evidence on which the Prosecution relies to establish the common criminal purpose and the mens rea for JCE liability is of a circumstantial nature[4] and it would not be sufficient for the Appeals Chamber to focus on limited pieces of evidence or the existent findings in the Trial Judgement, which do not thoroughly address the evidence relevant to the common criminal purpose or the plurality of persons.[5] In this regard, the Appeals Chamber also notes the scale and complexity of the case, with a trial record containing 4,843 exhibits[6] and the testimony and/or written statements of 133 witnesses,[7] the contents of which span wide swaths of Croatia and Bosnia and Herzegovina over a four and a half year time period (April 1991 – 31 December 1995) and pertain to multiple statutory crimes, numerous armed groups, and various high-ranking alleged JCE members.[8] Assessing this trial record in its entirety without having directly heard the witnesses would not allow the Appeals Chamber to fairly and accurately determine Stanišić’s and Simatović’s criminal responsibility.

125. In light of the above, in determining the subsequent course of action, the Appeals Chamber may exercise a certain discretion.[9] In accordance with Rule 117(C) of the Rules, the Appeals Chamber may order a retrial in appropriate circumstances.[10] In addition, the Appeals Chamber also has an inherent power to control its proceedings in such a way as to ensure that justice is done by remitting limited issues to be determined by either the original or a newly composed trial chamber.[11]

126. The Appeals Chamber notes that, of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record. Should the case be remitted to a newly composed trial chamber to do this exercise solely on the basis of the original trial record, it would encounter similar difficulties to those which would be encountered by the Appeals Chamber as a result of not having directly heard the witnesses.

127. Accordingly, and recalling that an appeal is not a trial de novo,[12] the Appeals Chamber, Judge Afanđe dissenting, finds that this case gives rise to appropriate circumstances for a retrial pursuant to Rule 117(C) of the Rules. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. While the Appeals Chamber is well aware that Stanišić and Simatović have spent nearly five years and four years and eight months, respectively, in detention, it is of the view that the alleged offences are of the utmost gravity and considers, Judge Afanđe dissenting, that, in the circumstances of this case, the interests of justice would not be well served if a retrial were not ordered.

[1] See supra, paras 80, 88, 90.

[2] See supra, paras 106, 108.

[3] See supra, para. 17.

[4] See Prosecution Appeal Brief, paras 44-101, 104.

[5] See supra, paras 27-61, 83, fn. 320. The Appeals Chamber further stresses that the Prosecution relies on the evidence “in its totality”. See, e.g., Prosecution Appeal Brief, paras 100, 104. In addition, due to the circumstantial nature of the evidence, the same impediment would arise if the Appeals Chamber were to assess the requirements of aiding and abetting liability.

[6] Trial Judgement, para. 12.

[7] Trial Judgement, paras 8-10.

[8] See, e.g., supra, paras 4, 28.

[9] Jelisić Appeal Judgement, para. 73.

[10] Haradinaj et al. Appeal Judgement, paras 50, 377; Muvunyi I Appeal Judgement, paras 148, 171. See also Orić Appeal Judgement, para. 187; Jelisić Appeal Judgement, para. 73.

[11] Čelebići Appeal Judgement, paras 711, 713, p. 306 (Disposition, items nos 2-4); Mucić et al. Appeal Judgement on Sentence, paras 3, 9-10, 16-17.

[12] See supra, para. 15.

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ICTR Rule Rule 118(C) ICTY Rule Rule 117(C)
Notion(s) Filing Case
Decision on Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

9.       […] It follows from the jurisprudence that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] […]

[1] See Review Decision of 23 January 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008], para. 13 and references cited therein.

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Decision on Review - 19.06.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Article 24 of the Statute of the Mechanism (“Statute”) and Rules 146, 147, and 148 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) a request to have the Appeals Chamber review a final judgement will be granted, if the moving party shows that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the trial or appeal proceedings; (iii) the new fact could not have been discovered through the exercise of due diligence; and (iv) the new fact could have been a decisive factor in reaching the original decision;[1]

CONSIDERING that [REDACTED] contain new information of an evidentiary nature that relates to [REDACTED] that could not have been taken into account at trial or on appeal and therefore constitute a new fact,[2] which, if proved, could have been a decisive factor in reaching the original decision [REDACTED];[3]

[1] See Prosecutor v. Sreten Lukić, Case No. MICT-14-67-R.1, Decision on Sreten Lukić’s Application for Review, 8 July 2015, para. 5; Prosecutor v. Milan Lukić, Case No. MICT-13-52-R.1, Decision on Milan Lukić’s Application for Review, 7 July 2015, para. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-R, Decision on Request for Review, 29 May 2013 (“Kajelijeli Review Decision”), para. 7; 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 (“Šljivančanin Review Decision”), p. 2.

[2] See Kajelijeli Review Decision, paras. 24, 32, 43.

[3] See 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)], paras. 3, 21, referring to [REDACTED].

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IRMCT Statute Article 24 IRMCT Rule Rule 146;
Rule 147;
Rule 148