After the Appeal Hearing was held in this case, Muvunyi requested that the Appeals Chamber consider the Appeal Judgement in Prosecutor v. Hadžihasanović, rendered on 22 April 2008, as it represented new authority on superior responsibility that was applicable in assessing Muvunyi’s liability.

6. The Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal[1] or if it has made a specific request to the parties for further information.[2] Muvunyi argues that a new jurisprudential development demands that the Appeals Chamber consider his post-hearing submissions. The Appeals Chamber notes that in preparing a Judgement, it considers all relevant jurisprudence, including decisions issued after the hearing of an appeal. If additional submissions from the parties on the Hadžihasanović Appeal Judgement had been necessary for a fair determination of the appeal in this case, the Appeals Chamber would have requested Counsel to provide further submissions. The Appeals Chamber has not done so.

5. Rule 108 of the Rules provides that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in a notice of appeal. Motions for variation of the notice of appeal should be submitted as soon as possible after identifying the new alleged error of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking variation of the notice of appeal.[1] Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each amendment, the ‘good cause’ requirement of Rule 108 is satisfied”.[2] It is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[3] The “good cause” requirement under Rule 108 encompasses both good reason for including the new or amended grounds of appeal sought and good reason as to why those grounds were not included in the original notice of appeal.[4]

6. In its previous determinations that proposed variations to the notice of appeal may be authorized within the scope of the good cause requirement, the Appeals Chamber has considered the following factors to be of relevance: (i) the variation is minor but clarifies the notice of appeal without affecting its content;[5] (ii) the opposing party has not opposed the variation or would not be prejudiced by it; (iii) the variation would bring the notice of appeal into conformity with the appeal brief; (iv) the variation does not unduly delay the appeal proceedings; or (v) the variation could be of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[6]

8. Nevertheless, the Appeals Chamber is not satisfied that there is good cause to allow Morina to amend his Notice of Appeal and as a corollary his Appellant’s brief to add the proposed new ground of appeal. The briefing in this case is complete, and the proposed variation would therefore unduly delay the appeal proceedings by requiring additional submissions on this point from the parties. Moreover, Morina fails to substantiate his claim that by excluding it, this would equate to a miscarriage of justice. In this sense, he has not identified any aspect of his criminal responsibility or his sentence that is implicated by the alleged error. Rather, his concern is mainly for his professional reputation[7] because, in his view, the language employed by the Trial Judgement leaves the impression that he was arrested by force. This does not amount to good cause.

12. In the interest of protecting the right of convicted defendants to a fair appeal, the Appeals Chamber has, in limited circumstances, permitted amendments even where there was no good cause for failure to include the new or amended grounds in the original notice—that is, where the failure resulted solely from counsel negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which are of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if they were excluded.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.

19. The Appeals Chamber notes that the Appellant does not request to amend any of his grounds of appeal in the Notice of Appeal and Appellant’s Brief, but simply submits that the seven additional grounds should be included anew. The Appeals Chamber further notes that instead of seeking to demonstrate “good cause” for submitting the additional grounds of appeal at this late stage of the proceedings on appeal, the Appellant simply attaches the new grounds of appeal that he seeks to have admitted as part of the briefing.[2] […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.

20. However, in fairness to the Appellant, who should not be prejudiced because of any negligence or inadvertence by his Counsel in failing to include the submitted additional grounds,[3] the Appeals Chamber will examine them in order to determine whether they should be included because they are of substantial importance to the success of the appeal or are likely to otherwise correct ambiguity or error in the previous filings without unduly delaying the appeal proceedings.

10. It has been held that the concept of “good cause” under this provision encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] In its cases, the Appeals Chamber has relied upon a variety of factors in determining whether “good cause” exists, including (i) the fact that the variation is so minor that it does not affect the content of the notice of appeal; (ii) the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the fact that the variation would bring the notice of appeal into conformity with the appeal brief.[2] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established.[3] In such instances, each amendment is to be considered in light of the particular circumstances of the case.[4]

11. The jurisprudence of the Tribunal establishes that the “good cause” requirement must be interpreted restrictively at late stages in the appeal proceeding when amendments would necessitate a substantial slowdown in the progress of the appeal – for instance, when they would require briefs already filed to be revised and resubmitted.[5] To hold otherwise, would leave appellants free to change their appeal strategy and essentially restart the appeal process at will (including after they have had the advantage of reviewing the arguments in a response brief), interfering with the expeditious administration of justice and prejudicing the other parties to the case.[6]

15. Although the Appeals Chamber has concluded that the Appellant has not shown “good cause” justifying the amendments to his grounds of appeal at this stage in the appeals proceedings, the Appeals Chamber recalls having under limited circumstances permitted amendments even where there was no good cause shown for failure to include the new or amended grounds in the original notice – that is where the failure resulted from counsel’s negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if they were excluded.In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his or her counsel. In the instant case, the Appeals Chamber concludes that the failure on the part of the Appellant’s Counsel to articulate these grounds at an earlier stage should not bar the Appellant from raising those grounds of appeal here. […]

15. […] The Appeals Chamber notes that each of these grounds goes to the issue of the sufficiency of the Indictment brought against the Appellant, which directly impacts upon his due process right under Article 21(4)(a) of the Statute “to be informed promptly and in detail […] of the nature and cause of the charge against him.” Protection of this right is considered to be of such importance that the issue of alleged defects in the indictment falls into the limited category of issues considered to be excepted from the waiver doctrine. In this case, therefore, the Appeals Chamber finds that the proposed new amendments, whether or not they are likely to succeed, could be of substantial importance to the Appellant’s appeal such that their exclusion would lead to a miscarriage of justice.[4]

17. The Appeals Chamber may authorise leave to amend a notice of appeal upon the showing of “good cause”. The concept of “good cause” covers both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] The “good cause” requirement is assessed on a case by case basis,[2] and several factors can be taken into account.[3] The Appeals Chamber has summarized these factors as follows:

These have included the fact that the variation is so minor that it does not affect the content of the notice of appeal; the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and the fact that the variation would bring the notice of appeal into conformity with the appeal brief. Where the appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established. The Appeals Chamber notes that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted. [4]

18. The Appeals Chamber recalls that the good cause requirement is to be interpreted more restrictively at later stages in the appeal proceedings when variations to the grounds of appeal may substantially affect the efficient administration of justice.[5] 

In the present case, the Appeals Chamber was seized of a motion to reorganise the grounds of appeal listed in Tarčulovski’s Appeal Brief in an order different from that set forth in his Notice of Appeal. Tarčulovski contended that good cause existed to amend his Notice of Appeal because two of his current counsels were appointed after it was filed. At the time the motion was filed, Tarčulovski believed that his Defence team had just received a fresh perspective on the significance of the alleged errors committed by the Trial Chamber because his entire team was then able to review the extensive record and transcript in the case.

25. The Appeals Chamber considers that, in the circumstances of this case, the change of counsel constitutes good reason for showing why those grounds were not included in the original Notice of Appeal. In addition, it takes note of the fact that the proposed variation to the Notice of Appeal would bring it into conformity with the Appeal Brief, that any potential prejudice caused to the Prosecution is cured through the Appeals Chamber’s decision to grant the Prosecution’s request for an extension of time to file its Respondent’s Brief,[6] and that the inclusion of these grounds of appeal in an amended notice of appeal would not unduly interfere with the expeditious administration of justice as these arguments do not reflect a change to an appeal strategy by Tarčulovski subsequent to reading the Prosecution’s Respondent’s brief, which has not yet been filed.[7] Therefore, the Appeals Chamber finds that Tarčulovski has shown good cause for amending his notice of appeal.

10. The Appeals Chamber recalls that the concept of "good cause" applicable to amendments to a notice of appeal encompasses both good reason for including the new amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] Where an appellant seeks a substantive amendment broadening the scope of the appeal, "good cause" might also, under some circumstances, be established.[2] In such instances, each amendment is to be considered in light of the particular circumstances of the case. The Appeals Chamber is of the view that the same logic may be applied while examining applications to supplement an appellant's brief.

11. At the same time, the jurisprudence of the Tribunal establishes that the "good cause" requirement must be interpreted restrictively at late stages in appeal proceedings when amendments would necessitate a substantial slowdown in the progress of the appeal - for instance, when they would require briefs already filed to be revised and resubmitted.[3] To hold otherwise would leave appellants free to change their appeal strategy and essentially restart the appeal process at will (including after they have had the advantage of reviewing the arguments in a response brief), thus interfering with the expeditious administration of justice and prejudicing the other parties to the case.[4]

15. […] The Appeals Chamber recalls that “further analysis undertaken over the course of time”[1] cannot, in and of itself, constitute good cause for an amendment as this would effectively amount to allowing the appellant to “restart the appeal process at will.”[2] In addition, the Motion fails to explain how the newly alleged error resulted from Ojdanić’s personal insight. The alleged error concerns an issue of law and Ojdanić’s counsel is principally responsible for the assessment of potential legal errors in the Trial Judgement.[3] The Appeals Chamber therefore finds that Ojdanić fails to demonstrate good cause for not having alleged this error in his Notice of Appeal. Rather, the Appeals Chamber finds that the failure to present it in the Notice of Appeal constitutes inadvertence or negligence on the part of Ojdanić’s counsel.[4]

Cf. Pavković Decision on First Amended Notice of Appeal, recognizing the existence of good cause for a newly alleged error of fact.

16. In the circumstances of the present case, the Appeals Chamber observes that if Ojdanić indeed prevails on the merits of his argument, this would lead to the conclusion that the Trial Chamber convicted him on the basis of a legally erroneous interpretation of the mens rea element of crimes against humanity, which could have a direct implication on his criminal responsibility. Without pronouncing itself on the merits of the appeal, the Appeals Chamber concurs with Ojdanić’s submission that the amendment sought is “of substantial importance to the success” of his appeal, such that disallowing it would be prejudicial. It is therefore in the interests of justice that the proposed amendment be granted. The Appeals Chamber is further cognisant of the fact that none of the parties opposed the requested variation and that allowing for such variation would not unduly interfere with the expeditious administration of justice.

15. The Appeals Chamber recalls that an appellant seeking variation of the grounds of appeal contained in a notice of appeal bears the burden of demonstrating that each proposed amendment meets the “good cause” requirement of Rule 108 of the Rules.[1] With respect to Pavković’s submission that the sought amendment is the result of the ongoing discussions between him and his counsel, as well as the analysis of the other appellants’ notices of appeal,[2] the Appeals Chamber reiterates that further analysis undertaken over the course of time, taken alone, cannot constitute good cause for an amendment as this would effectively amount to allowing the appellant to restart the appeal process at will.[3] Moreover, an appellant’s counsel is the one primarily responsible for the identification of potential legal errors in a trial judgement.[4] These considerations are equally applicable in multiple-appellants proceedings. The Appeals Chamber therefore finds that Pavković has failed to demonstrate good cause for not having included in his Notice of Appeal the allegations of errors contained in the seventh ground of Ojdanić’s Amended Notice of Appeal.

6.  Rule 108 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) states that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal.”  In addition, paragraph 12 of Practice Direction IT/155/Rev. 3 provides:

Where an appeal has been filed from a judgement, a party wishing to move the Appeals Chamber for a specific ruling or relief ("moving party") shall file, in accordance with the Rules, a motion containing:

(a) the precise ruling or relief sought;

(b) the specific provision of the Rules under which the ruling or relief is sought;

(c) the grounds on which the ruling or relief is sought.

7.  Together, these requirements mean that a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the “good cause” requirement of Rule 108 is satisfied. […] 

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RECALLING that the Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal or if it has made a specific request to the parties for further information;[1]