Sufficient grounds

Notion(s) Filing Case
Decision on Instigating Contempt Proceedings - 25.07.2008 ŠEŠELJ Vojislav
(IT-03-67-AR77.2)

16. The Appeals Chamber considers that in finding that it did not have sufficient elements “to determine” whether Vučič committed contempt of the Tribunal, based on the conclusions of the amicus curiae that the mental element of contempt had not been “establish and that it would have to be “proven” that Vučič had effective knowledge that VS-032 was a protected witness, the Trial Chamber required a final finding of contempt. The Appeals Chamber recalls, however, that the “sufficient grounds” standard under Rule 77(D) of the Rules requires the Trial Chamber only to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed.[1] The Appeals Chamber accordingly finds that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which amounts to a discernible error.The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

[1] See Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003, p. 3. See also Prosecutor v. Josip Jović, Case Nos. IT-95-14 & 14/2-R77, Decision on Review of Indictment and Order for Non-disclosure, 12 September 2005, pp. 1-2; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2, Decision on Review of Indictment, 26 April 2005, pp. 1-2.

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on False Testimony - 16.02.2010 KAREMERA et al.
(ICTR-98-44-AR91.2)

19. With respect to the fact that the Amicus Report[1] did not establish when Witness BTH gave false testimony or which portions of his evidence were false, and the Trial Chamber’s finding that as a result any indictment would necessarily be insufficiently precise, the Appeals Chamber finds that the Trial Chamber applied the incorrect legal test. The legal test is whether there are “sufficient grounds to proceed against a person for giving false testimony”.[2] The ICTY Appeals Chamber in the Šešelj case held that “the ‘sufficient grounds’ standard under Rule 77(D) of the ICTY Rules only requires the Trial Chamber to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed”.[3] While the Šešelj Decision concerned the initiation of contempt proceedings under Rule 77 of the ICTY Rules rather than proceedings for false testimony under Rule 91 of the Rules, the Appeals Chamber observes that the language in the two rules is identical with respect to the initiation of proceedings.[4] It therefore considers that since the “sufficient grounds” requirement, as prescribed in Rule 77 of the ICTY Rules, is satisfied where the evidence establishes a prima facie case, the “sufficient grounds” requirement of Rule 91(C) of the Rules is also satisfied by the existence of evidence which establishes a prima facie case. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in basing its decision upon the fact that the Amicus Report did not determine when Witness BTH gave false testimony or which portions of his evidence were false because this does not necessarily preclude the existence of a prima facie case of false testimony.

[1] [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Final Report of Amicus Curiae of the Investigations into the False Testimony of Prosecution Witness BTH/GFA in The Prosecutor v. Édouard Karemera et al. and The Prosecutor v. Casimir Bizimungu et al., filed confidentially on 17 April 2009.]

[2] Rule 91(C) of the Rules [of Procedure and Evidence].

[3] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial Chamber’s Decision of 10 June 2008, 25 July 2008 (“[ešelj Decision”), para. 16. See also Karemera et al. Decision on Refusal to Investigate a Witness for False Testimony, para. 17; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Order Concerning Allegations Against Milka Maglov, 15 April 2003, p. 3.

[4] Rule 77(D) of the ICTY and Tribunal Rules states: “If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may: (i) in circumstances described in paragraph (C)(i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C)(ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself.”

Download full document