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Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 5-6: CONSIDERING that “material provided under Rule 70 shall not be released to the Accused in another case unless the provider consents to such disclosure”;[1]

CONSIDERING that “[t]he purpose of Rule 70(B) to (G) is to encourage States, organizations, and individuals to share sensitive information with the Tribunal […] by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected”[2] and that, “[w]hen a person possessing important knowledge is made available […] on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the ‘information’ shielded by Rule 70, but also the substance of the information shared by the person”;[3]

FINDING therefore that neither the material provided under Rule 70 to either the Prosecution or the Defence in a case nor its sources may be released to the accused in another case prior to obtaining consent from the provider of that information and that this holding does not depend upon whether or not that material was used as evidence in a previous case;

[1] Blaškić 2006 Decision, p. 11; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Prosecution’s Motion for Clarification of the Appeals Chamber’s Decision Dated 4 December 2002 on Paško Ljubičić’s Motion for Access to Confidential Material, Transcripts and Exhibits in the Blaškić Case, 8 March 2004, para. 35; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Order on Protective Measures and Prosecution’s Submissions on Disclosure of Rule 70 Material and Ex Parte Filings from the Trial in Prosecutor v. Blaškić to Paško Ljubičić, 20 April 2004, p. 4.

[2] Blaškić 2006 Decision, p. 12; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR108bis & AR73.3, Public Version of the Confidential Decision on the Interpretation and Application of Rule 70, 23 October 2002 (“Milošević Decision”), para. 19.

[3] Milošević Decision, para. 23.

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ICTR Rule Rule 70 ICTY Rule Rule 70
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

[1] Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brðanin Case, 24 January 2007 (“Brðanin Decision”), para. 17.

[2] Ibid.

[3] Ibid.

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ICTR Rule Rule 75(F) ICTY Rule Rule 75(F)
Notion(s) Filing Case
Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on “Defence Motion on Behalf of Rasim Delić Seeking Access to All Confidential Material in the Blaškić Case”, 1 June 2006 (“Blaškić 2006 Decision”), p. 8 with further references in footnote 34.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić 2002 Decision”), para. 15.

[3] Ibid., para. 14; see for further references Blaškić 2006 Decision, footnote 36.

[4] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4; see for further references Blaškić 2006 Decision, footnote 37.

[5] Simić Decision [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatović for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simić et al. Case, 12 April 2005], p. 7. 

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Decision on Access to Confidential Materials - 21.02.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;

[1] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions For Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 17. See already Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Defence Motion by Franko Simatović for Access to Transcripts, Exhibits, Documentary Evidence and Motions Filed by the Parties in the Simić et al. Case, 12 April 2005 (Simić Decision), p. 3.

[2] Bralo Decision, para. 17.

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Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

The Appeals Chamber recalled that, in reducing the time allocated for the presentation of evidence, Trial Chambers must provide a reasoned opinion:

16. […] The Appeals Chamber recalls that a Trial Chamber must, at a minimum, provide reasoning in support of its findings on the substantive considerations relevant for a decision and considers that, in this case, the reasoning in the Impugned Decision in the absence of this assessment is insufficient in itself to support the reduction.[1] While it may be that, in light of the evidence presented to date, the reduction of 107 hours allocated to the Prosecution still permits it a fair opportunity to present its case, the Trial Chamber must specifically consider whether this is indeed so.

[1] See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 10; 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 (finding that the Trial Chamber had an obligation to provide reasons for its decision, although it need not have provided its reasoning in detail); Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 6. 

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Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

23. […] The Trial Chamber did not state that because the Completion Strategy is reflected in a Security Council resolution, it is therefore bound to its deadlines in the management of this trial. Rather, it merely considered the Completion Strategy as one factor to be weighed in the Impugned Decision while correctly stressing that it would not allow the “considerations of economy” to “violate the right of the Parties to a fair trial.”[1] The Appeals Chamber notes however, as it has done previously in this case, that Completion Strategy considerations aside,

time and resource constraints exist in all judicial institutions and that a legitimate concern in this trial, which involves six accused, is to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.[2]

[1] Impugned Decision, para. 16.

[2] Prlić Decision on Cross-Examination, p. 4 (citations omitted).

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Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

At para. 14, the Appeals Chamber held:

14. At the outset, the Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial.”[1] It was therefore entirely within the Trial Chamber’s discretion in the Impugned Decision to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] However, with respect to the Prosecution’s first argument in this Interlocutory Appeal, the Appeals Chamber further recalls its previous holding in the Orić case that in setting time limits for the presentation of evidence, a Trial Chamber is required to consider whether the amount of time allocated is objectively adequate to permit the relevant party to fairly set forth its case.[3] While the Orić Decision applied to the setting of time limits rather than to their revision as in this case, the same logic applies. Furthermore, while that decision by the Appeals Chamber involved a reduction of the Defence’s case, under Article 20(1) of the Statute of the International Tribunal, the requirement of the fairness of a trial is not uniquely predicated on the fairness accorded to any one party.[4] Indeed, the principle of equality of arms, falling within the fair trial guarantee under the Statute,[5] applies to the Prosecution as well as the Defence.[6] As previously reasoned by the Appeals Chamber:

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community). This principle of equality does not affect the fundamental protections given by the general law of Statute to the accused, and the trial proceeds against the background of those fundamental protections. Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[7]

Thus, in this case, the question before the Appeals Chamber is whether the Trial Chamber, in reducing the Prosecution’s case by 107 hours, took into consideration the complexity of the remaining issues to be addressed and determined that the remainder of the time allotted to the Prosecution was sufficient for allowing it a fair opportunity to present its case.[8]

In the present case, the Appeals Chamber considered that:

16. The Appeals Chamber considers that although the Trial Chamber further based its decision on the fact that “adhering to these excessively long terms would not be in the interest of justice or in line with the right of the Accused to a fair and expeditious trial”,[9] it failed to adequately consider whether reducing the amount of time available to the Prosecution by 107 hours would still allow it the opportunity to fairly present its case.[10] The Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests. This is particularly so in a trial of this scope and complexity, for which there is little precedent. As stated previously, in allocating or revising the amount of time allotted to a party for the presentation of its case, the Trial Chamber is required to ensure that the allotted time is reasonably sufficient in light of the complexity and number of issues to be litigated.[11] In this sense, the Trial Chamber was required to assess whether the appropriate balance was struck in reducing the time available to the Prosecution for the presentation of its case. However, it failed to actually do so, merely stating in this regard that “the considerations of economy should never violate the right of the Parties to a fair trial.”[12] […]

[1] Milošević Decision to Impose Time Limit, para. 10 (emphasis in the original).

[2] Ibid. See also, Rules 54 and 73bis(F).

[3] Cf. Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”), para. 8

[4] Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, para. 13.

[5] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 44; Prosecutor v. Dario Kordić and Mario Čerkez,, Case No. IT-95-14/2-A, Judgement, 17 December 2004, para. 175.

[6] Tadić Appeal Judgement, para. 48; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”), para. 25.

[7] Aleksovski Decision, para. 25 (citations omitted), see also Prosecutor v. Zdravko Mucić et al., Case No. IT-96-21-T, Decision on the Motion of the Joint Request of the Accused Persons Regarding the Presentation of Evidence, 24 May 1998, para. 44 (“compliance with the specific rights set out in Article 21 alone may not necessarily guarantee that there has been a fair trial” and that “a fair trial can only be considered within the plenitude of the trial as a whole”).

[8] Orić Decision, para. 9. In this regard, the Appeals Chamber recalls that the Prosecution “has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond reasonable doubt.” Ibid., para. 7.

[9] Ibid., para. 14.

[10] The Appeals Chamber notes that the Prosecution made it clear in oral argument that it would not be able to put forward a “fair and reasonable case” should the Trial Chamber reduce its total number of allocated hours by one fourth. See  T. 9316, 1 November 2006; T. 9532, 6 November, 2006.

[11] Orić Decision, paras 8-9.

[12] Impugned Decision, para. 16.

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Decision on Reducing Time for the Prosecution Case - 06.02.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

20. […] [T]he Appeals Chamber reiterates that the imposition of time limits in a trial – whether calculated in months or hours – is entirely the prerogative of the Trial Chamber. The true intent and extent of the independence accorded to the Prosecutor under Article 16 of Statute is to ensure that no “government or other institution or person, including the Judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.”[1] The Appeals Chamber maintains that it is erroneous for the Prosecution to suggest that its independence extends to the way in which its case is to be presented before a Trial Chamber.[2]

[1] Milošević Decision to Impose Time Limit, para. 12.

[2] Ibid., para. 13.

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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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Decision on Assignment of Counsel - 29.01.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

While the Appeals Chamber reserved the right to rule on the issue of Krajišnik’s self-representation, which it did later,[1] it decided that it was in the President’s authority to review a Registrar’s decision assigning counsel pursuant to Rule 45. At pages 2-4, it considered that:

CONSIDERING that in the Registrar’s Decision, the Registrar assigned counsel to the Applicant from the list of counsel qualified to represent indigent suspects and accused pursuant to Rule 45 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”);

CONSIDERING that under Rule 45(A), such assignments are made by the Registrar in accordance with the procedure established in the Directive on the Assignment of Defence Counsel (“Directive”),[2] but that Rule 45 does not specify who has competence to review a decision by the Registrar under that Rule;

CONSIDERING that pursuant to Article 13(B) of the Directive, an “accused whose request for assignment of counsel has been denied or who has been found to have sufficient means to remunerate counsel in part, may [. . .] file a motion to the Chamber before which he is due to appear for review of the Registrar’s decision”;

CONSIDERING however that, Article 13(B) of the Directive applies to a decision by the Registrar whether or not to assign counsel on the basis of an accused’s alleged indigency;[3]

CONSIDERING that in this case before the Appeals Chamber, the Registrar’s Decision did not deny assignment of counsel to the Applicant on the basis of non-indigency or find that the Applicant is only partially indigent; rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list,[4] which, under Rule 45(B)(i), expressly incorporates all of the qualification requirements found under Rule 44 of the Rules for counsel who appear before the International Tribunal;[5]

CONSIDERING that under Rule 44(A) and (B) of the Rules, power to review a decision by the Registrar as to whether a proposed counsel meets the required qualifications therein for representing an accused before the International Tribunal lies with the President of the International Tribunal;[6]

CONSIDERING further that, just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair;[7] 

FINDING therefore that the Appeals Chamber is not competent to consider the requests raised in sub-paragraphs (a) and (b) of the Motion and that the authority for reviewing the Registrar’s Decision lies with the President of the International Tribunal;

FINDING that the remaining request in sub-paragraph (c) can be decided only by the Appeals Chamber on the basis of the decision by the President of the International Tribunal in relation to requests (a) and (b) which, by their nature, have priority;[8]

HEREBY DISMISSES the Motion in relation to sub-paragraphs (a) and (b);

[]

REMAINS SEIZED of the request in sub-paragraph (c).

 

The President subsequently ruled on Krajišnik’s requests a) and c): [9]

The President held that he had jurisdiction to review the decision by the Registrar, assigning counsel to Krajišnik pursuant to Rule 45, paras. 7-10. As in the Appeals Chamber’s decision of 29 January 2007, the question centered on the interpretation of Rules 44, 45 and the Directive on the Assignment of Defence Counsel:

7.       As a preliminary matter, the first issue before me is whether I am competent to review the Impugned Decision. Krajišnik states that I have competence under Article 13(A) of the Directive, which provides that

[t]he suspect whose request for assignment of counsel has been denied may, within fifteen days from the date upon which he is notified of the decision, file a motion before the President for review of that decision. The President may either confirm the Registrar’s decision or rule that a counsel should be assigned.

In addition, Krajišnik submits that I may review the Impugned Decision because the President of the International Tribunal “has an inherent jurisdiction to review an administrative decision of the Registrar that impugns upon the rights of an accused at this Tribunal.”[10]

8.       While I do find that I have power to review the Impugned Decision, it is not on the legal bases that Krajišnik suggests. As is evident from the plain language of Article 13(A) of the Directive, the President’s power of review is with respect to the Registrar’s decision to assign counsel to a suspect, a category into which Krajišnik clearly does not fall having been convicted by a Trial Chamber of this International Tribunal.[11] Furthermore, Article 13(A) pertains to review of a Registrar’s decision whether or not to assign counsel on the basis of a suspect’s alleged indigency.[12] In this case, the Impugned Decision did not deny assignment of counsel to the Applicant on that basis; “rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list.”[13]

9.       Furthermore, while I do enjoy an inherent power to review administrative decisions of the Registrar where they impinge upon the rights of an accused before the International Tribunal,[14] I may not exercise that power where the power of review has been expressly conferred elsewhere.[15] Thus, I do not agree with Krajišnik’s argument that I may review the Impugned Decision on grounds that it fails to respect the exercise of his right to self-representation because that power lies with the Appeals Chamber. As held by the Appeals Chamber, “[w]hether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings.”[16] 

10.     However, I do have authority to review the Impugned Decision in so far as it was a determination by the Registrar as to whether Krajišnik’s counsel of choice met the qualification requirements under Rule 45(B) of the Rules for being assigned to him in this appeal. As recently clarified by the Appeals Chamber, “just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal.”[17]

As for the standard of review, the President held:

11.     The Registrar’s decision to permit or deny assignment of counsel under Rule 45 of the Rules in the “interests of justice” involves both questions of law and fact.[18] Given that the Registrar has “principal responsibility for overseeing the assignment of defence counsel”, he enjoys a certain degree of deference or margin of appreciation in reaching a decision on assignment of counsel.[19] Where a suspect or an accused requests that I review such an administrative decision of the Registrar, that individual bears the burden of demonstrating that the Registrar has erred and that such error has “significantly affected the Registrar’s decision to his detriment.”[20] In reviewing such an administrative decision by the Registrar, I will only quash that decision where I am persuaded that he has: (1) failed to comply with the legal requirements of the Directive at issue; (2) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (3) taken into account irrelevant material or failed to take into account relevant material; or (4) if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[21]

[1] See for that decision: Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February, 11 May 2007.

[2] IT/73/Rev. 11, 29 June 2006.

[3] Prosecutor v. [ljivančanin, Case No. IT-95-13/1-PT, Decision on Assignment of Defence Counsel, 20 August 2003 (“[ljivančanin Decision”), para. 16.

[4] See Registrar’s Decision [Decision of the Registrar of the International Tribunal, 8 December 2006], p. 1; see also Registrar’s Submission [Registrar’s Submission on Counsel’s Request for Review of the Registrar’s Decisions on Assignment of Counsel, 16 January 2007], paras. 9-23.

[5] This is with the exception of the language requirement of Rule 44(A)(ii), which may be waived by the Registrar as provided for in the Directive. See also Article 14(A) of the Directive.  

[6] Rule 44(B) provides that “A suspect or accused may seek the President’s review of the Registrar’s decision.” The Appeals Chamber agrees with the [ljivančanin Decision in that while the text of this Rule is not clear as to what exactly is the “decision of the Registrar” referred to, “it would seem to include at least decisions by the Registrar under paragraph (B) of Rule 44 itself, that is, decisions either i) not to permit appointment of counsel under the interests of justice exception to the working languages requirement or ii) to impose conditions on such an appointment.” Ibid., para. 13 (emphasis added). The Appeals Chamber considers that a reasonable interpretation of Rule 44(B) is that the President’s power to review extends to all conditions placed by the Registrar on the assignment of counsel under that Rule, including the conditions found in Rule 44(A). As reasoned in the [ljivančanin Decision, unless the Rules provide expressly to the contrary, they should be read as affording some form of review for administrative decisions taken by the Registrar. Ibid., para. 18.

[7] Cf. Prosecutor v. Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, 7 November 2003, para. 7. Cf. also [ljivančanin Decision, para. 18.

[8] Whether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for  the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings. See e.g. Prosecutor v. [ešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 16.

[9] See [President’s] Decision on Request for Review of the Decision of the Registry in Relation to the Assignment of Counsel, 1 February 2007.

[10] Request, paras. 22-23.

[11] See Prosecutor v. Krajišnik, Case No. IT-00-39-T, Judgement, 27 September 2006.

[12] Cf. Decision on “Motion Seeking Review of the Decisions of the Registry in Relation to Assignment of Counsel”, 29 January 2007 (“Decision of 29 January 2007”), p. 2.

[13] Id., p. 3.

[14] Prosecutor v. Delić, Case No. IT-04-83-PT, Decision on Request for Review, 8 June 2005 (“Delić Decision”), para. 6.

[15] Prosecutor v. Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, 7 November 2003 (“Blagojević Decision”), para. 7.

[16] Decision of 29 January 2007, fn. 11 (emphasis added) citing Prosecutor v. Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 16.

[17] Id., p. 3 (emphasis added). See also Delić Decision, paras. 7-8.

[18] Prosecutor v. Šljivančanin, Case No. IT-95-13/1-PT, Decision on Assignment of Defence Counsel, 20 August 2003 (“Šljivančanin Decision”), para. 22.

[19] Id. citing Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka et al. Decision”), para. 12.

[20] Kvočka et al. Decision, para. 14.

[21] Id., para. 13. 

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Other instruments Directive on the Assignment of Defence Counsel (ICTY);
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Notion(s) Filing Case
Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Appeals Chamber found:

135.  […] the Trial Chamber did not err in considering the large number of victims at Gitwa Hill as an aggravating circumstance relevant to the sentence. As to the conviction for genocide, there need not be a large number of victims to enter a genocide conviction. As for extermination, the actus reus requires “killing on a large scale”.[1] While this does not “suggest a numerical minimum”,[2] a particularly large number of victims can be an aggravating circumstance in relation to the sentence for this crime if the extent of the killings exceeds that required for extermination. In the present case, there is no indication that, in considering aggravating circumstances, the Trial Chamber looked at only those killings required for extermination when it specifically cited the fact that “thousands” of people were killed.[3]

 

[1] Ntakirutimana Appeal Judgement, para. 516.

[2] Ntakirutimana Appeal Judgement, para. 516.

[3] Trial Judgement, para. 508(ii).

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

At paras 64 to 73, the Appeals Chamber addressed the issue whether an accused can raise on appeal a different alibi than the one raised at trial.

At trial, the Appellant had argued that his alibi placed him in Gitarama at the relevant time, an argument which was not upheld by the Trial Chamber. On appeal, the Appellant relied on documents admitted pursuant to Rule 115 of the Rules, arguing that he was in Kigali on the dates these documents were signed. The Appeals Chamber held:

66. The first issue is whether an Appellant is permitted to raise a new alibi on appeal. Pursuant to Rule 67(A)(ii)(a), the Prosecution has to be provided with notice of an alibi argument as early as practicable and prior to the commencement of trial. While Rule 67(B) states that failure to provide such notice “shall not limit the right of the accused” to rely on an alibi defence, the jurisprudence permits a Trial Chamber to consider the failure to provide the requisite notice in its assessment of the alibi.[1] The same legal principle applies in a situation where an alibi is raised for the first time on appeal. Rule 67 provides that the Defence can still raise an alibi even if no prior notice is provided; however, if for example the Appellant could have been reasonably expected to raise the new alibi during trial, the Appeals Chamber can take particular note of the failure to provide timely notice to the Prosecution in its assessment of the alibi. This does not contradict the finding of the ICTY Appeals Chamber that an “accused, generally, cannot raise a defence for the first time on appeal”.[2] The Appeals Chamber recalls

that an alibi “does not constitute a defence in its proper sense”. In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act.[3]

[1] Kajelijeli Trial Judgement, paras 164-67; Kamuhanda Trial Judgement, para. 82; Kayishema and Ruzindana Trial Judgement, paras 233-39; Kayishema and Ruzindana Appeal Judgement, paras 106, 110-11; Musema Trial Judgement para. 107; Niyitegeka Trial Judgement, para. 50; Semanza Trial Judgement, para. 82.

[2] Aleksovski Appeal Judgement, para. 51.

[3] Kamuhanda Appeal Judgement, para. 167.

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Trial Chamber convicted the Appellant for committing extermination at Gitwa Hill, and, alternatively, for both instigating, and aiding and abetting extermination (Trial Judgement, para. 485). The Appeals Chamber proprio motu raised the issue of alternative convictions and held

122.  While an accused can be convicted for a single crime on the basis of several modes of liability, alternative convictions for several modes of liability are, in general, incompatible with the principle that a judgement has to express unambiguously the scope of the convicted person’s criminal responsibility. This principle requires, inter alia, that the sentence corresponds to the totality of guilt incurred by the convicted person. This totality of guilt is determined by the actus reus and the mens rea of the convicted person. The modes of liability may either augment (e.g., commission of the crime with direct intent) or lessen (e.g., aiding and abetting a crime with awareness that a crime will probably be committed[1]) the gravity of the crime.[2] Thus, the criminal liability of a convicted person has to be established unequivocally.

In the present case, the Appeals Chamber held, by majority, Judge Güney dissenting (see also below under “Extermination: committing”), that the Trial Chamber did not convict the Appellant in the alternative; rather, the Trial Chamber was seeking to provide a further characterisation of the Appellant’s criminal conduct, which constituted committing, instigating, and aiding and abetting.

For case-law on cumulative charging and the pleading principles on the various modes of liability, see Chapter VI of the Blaškić Appeal Judgement.

[1] See Blaškić Appeal Judgement, para. 50.

[2] In this context, the Appeals Chamber recalls that in Krstić, the ICTY Appeals Chamber stated that it had taken into account the sentencing practice of the courts of the former Yugoslavia applicable in that case, in particular the practice that “the sentence of a person who aided a principal perpetrator to commit a crime can be reduced to a sentence less than the one given to the principal perpetrator”, Krstić Appeal Judgement, para. 270 (note omitted). 

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

At paras 138 and 139, the Appeals Chamber held that

[t]here is only one genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994 and that resulted in the killings of hundreds of thousands of Tutsi. In sentencing, acts in furtherance of this one genocide and attributable to the accused can be taken into account. The Appeals Chamber notes that while the genocide in Rwanda cost the lives of hundreds of thousands of people, the Appellant’s individual criminal responsibility has to be measured according to his own contributions and the killings resulting therefrom, taking into account his own position. 

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Trial Chamber convicted the Appellant for committing extermination at Gitwa Hill, and, alternatively, for both instigating, and aiding and abetting extermination (Trial Judgement, para. 485). The Appeals Chamber proprio motu raised the issue of alternative convictions and held

122.  While an accused can be convicted for a single crime on the basis of several modes of liability, alternative convictions for several modes of liability are, in general, incompatible with the principle that a judgement has to express unambiguously the scope of the convicted person’s criminal responsibility. This principle requires, inter alia, that the sentence corresponds to the totality of guilt incurred by the convicted person. This totality of guilt is determined by the actus reus and the mens rea of the convicted person. The modes of liability may either augment (e.g., commission of the crime with direct intent) or lessen (e.g., aiding and abetting a crime with awareness that a crime will probably be committed[1]) the gravity of the crime.[2] Thus, the criminal liability of a convicted person has to be established unequivocally.

In the present case, the Appeals Chamber held, by majority, Judge Güney dissenting, that the Trial Chamber did not convict the Appellant in the alternative; rather, the Trial Chamber was seeking to provide a further characterisation of the Appellant’s criminal conduct, which constituted committing, instigating, and aiding and abetting.

For case-law on cumulative charging and the pleading principles on the various modes of liability, see Chapter VI of the Blaškić Appeal Judgement.

[1] See Blaškić Appeal Judgement, para. 50.

[2] In this context, the Appeals Chamber recalls that in Krstić, the ICTY Appeals Chamber stated that it had taken into account the sentencing practice of the courts of the former Yugoslavia applicable in that case, in particular the practice that “the sentence of a person who aided a principal perpetrator to commit a crime can be reduced to a sentence less than the one given to the principal perpetrator”, Krstić Appeal Judgement, para. 270 (note omitted). 

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

The Trial Chamber had found that the Appellant encouraged attackers to kill Tutsi women married to Hutu men without convicting the Appellant on this basis because it found that there was insufficient evidence to establish that his conduct directly and substantially contributed to the killing of these Tutsi women, or their children.[1] However, the Trial Chamber considered that the Appellant’s encouragement of the killing of Tutsi women who were married to Hutu could be considered as an aggravating factor.[2] The Appeals Chamber found in para. 141 that “[t]here was no contradiction in the Trial Chamber’s findings in this respect”. In the present case, the question of further aggravation of the sentence of life imprisonment needed not to be addressed.

[1] Trial Judgement, para. 474.

[2] See Trial Judgement, para. 508(iii).

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Appeal Judgement - 16.01.2007 NDINDABAHIZI Emmanuel
(ICTR-01-71-A)

At para. 72, the Appeals Chamber reiterated that “the onus on the Prosecution to comply with Rule 68 to the best of its ability is not a secondary obligation, and is as important as the obligation to prosecute.[1]”

[1] See Kordić and Čerkez Appeal Judgement, para. 242.

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Decision on Postponement of Appeal Hearing - 15.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

The Appeals Chamber dismissed the Appellant’s motion seeking a postponement of the appeal hearing due to the assignment of a new Co-Counsel, considering that:

Pp. 4-5: CONSIDERING that pursuant to Article 15 of the Directive on the Assignment of Defence Counsel (“Directive”), the Lead Counsel “shall deal with all stages of procedure” and “has primary responsibility for the Defence”, while the Co-Counsel may intervene “under the authority of Lead Counsel”;

CONSIDERING that the Appellant’s Lead Counsel was put on notice of the date of the Appeals Hearing on 16 November 2006, and […] he has not to date informed the Appeals Chamber of any justified unavailability for the Appeals Hearing;

RECALLING that the Letter of Assignment was offered to the current Co-Counsel by the DCDMS on the understanding that this would not result in any delay of the appellate proceedings;

CONSIDERING that the Lead Counsel, who, in the absence of any assistance from the former Co-Counsel, has had ample time to prepare for the Appeals Hearing in the present case,[1] and is in a position to brief the current Co-Counsel as to matters that may require his assistance during the Appeals Hearing;

CONSIDERING that, in light of the fact that the current Co-Counsel is a qualified lawyer, the Appellant’s argument that the verbal undertaking of the current Co-Counsel is of no significance to the latter’s ability to prepare for the Appeals Hearing is a mere assertion;[2]

CONSIDERING, therefore, that the Appellant has not shown that any postponement of the Appeals Hearing as scheduled by the Scheduling Order is required in the interests of justice.

[1] The Appeals Chamber notes that Mr. Bharat Chadha was assigned to the Appellant’s case on 5 May 2004 as Co-Counsel and was appointed Lead Counsel on 17 November 2004.

[2] See the Appellant’s arguments on p. 4 para. 2.

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Decision on Admission of Amicus Curiae Brief - 12.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At page 3, the Appeals Chamber restated its case-law regarding Rule 74 submissions:

[] granting leave to make submissions under Rule 74 is a matter within the discretion of the Chamber;[1]

[] the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to submit a brief or to offer oral argument is whether such submissions would assist the Appeals Chamber in its consideration of the questions at issue on appeal;[2]

[1] See Prosecutor v. Ante Gotovina et al., Case No. IT-60-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7; Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7. See also, by analogy, “Information Concerning the Submission of Amicus Curiae Briefs” before the International Criminal Tribunal for Former Yugoslavia, 27 March 1997, IT/122, paras 2 and 5(c).

[2] The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Association of Defence Counsel Request to Participate in Oral Argument, 7 November 2005, p. 3. See also Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Amicus Curiae Application of Paul Bisengimana, 30 March 2004, p. 3.

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Decision on Rejoinder Evidence - 12.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

6. The Appeals Chamber reiterates that an appeal pursuant to Article 24 of the Statute the Tribunal is not a trial de novo.[1] Rule 115 of the Rules specifically governs the admission of additional evidence on appeal, as well as rebuttal material, where the particular circumstances in the case so require. However, no provision is made under Rule 115 for seeking admission of rejoinder evidence to rebuttal material. Moreover, the Appeals Chamber does not consider that Rule 85(A) of the Rules, which specifically governs the presentation of evidence at trial, can be directly transposed to the presentation of additional evidence on appeal, which is covered by the provisions of Rule 115. While Rule 89(B) read in conjunction with Rule 107 of the Rules[2] generally stipulates that the Appeals Chamber, in cases not specifically provided for under the section of the Rules on evidence, “shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”, it does not require that the Appeals Chamber allow for the admission of rejoinder evidence in Rule 115 proceedings. Thus, nothing in the Rules explicitly entitles parties to seek admission of rejoinder evidence on appeal and the Appeals Chamber will only allow admission of such evidence where the particular circumstances of the case so require for a fair determination of the matter before it.

7. In the present case, the Appeals Chamber recalls that the substance of the additional evidence admitted by the Appeals Chamber relates to Witness EB’s purported wish to recant his testimony provided at trial, notably with respect to the Appellant’s participation in the killings in Gisenyi on 7 – 9 April 1994.[3] The material admitted in rebuttal is anticipated to directly relate to the substance of the additional evidence, in particular with respect to the Prosecution’s investigation into the circumstances of the purported recantation of Witness EB’s trial testimony.[4] In light of the documentary material already admitted in this appeal, the Appeals Chamber is not convinced that the anticipated testimony of the three witnesses referred to by the Appellant would make a material difference to his case, that it would be helpful in assessing the rebuttal material, or that it is necessary for a fair determination of the issue of Witness EB’s purported recantation.[5]

[1] Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 8 December 2006 (“Decision of 8 December 2006”), para. 4; Confidential Decision on Appellant Hassan Ngeze’s Six Motions for Admission of Additional Evidence on Appeal and/or Further Investigation at the Appeal Stage, 23 February 2006 (“Decision of 23 February 2006”), para. 5; Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005 (“Decision of 4 October 2005”), p. 3; Decision on Appellant Hassan Ngeze’s Motion for Approval of the Investigation at the Appeal Stage, 3 May 2005, p. 3 (“Decision of 3 May 2005”); Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 177.

[2] Rule 107 of the Rules provides that “[t]he Rules of Procedure and Evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

[3] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006], para. 8.

[4] [Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006, para. 8].

[5] See by analogy, Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005 – cf. T. 19 May 2005 (Appeals Hearing), p. 49 et seq.

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