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Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

The Appeals Chamber noted the Trial Chamber’s consideration of the Prosecution’s position that “most [of its] witnesses for the two cases are identical and likely need to be called for both trials”.[1] Consequently, the Appeals Chamber found that there will be lesser hardship for some witnesses if only one trial is held and that this should weigh in favour of joinder.[2]  Moreover, if some witnesses are specific for charges alleged with regard to just one of the appellants, it is unlikely that they will suffer hardship by being cross-examined by each Appellant for a total of three times.  In any event, as previously noted by the Appeals Chamber, under Rule 90(F) of the Rules, the Trial Chamber can mitigate any potential burden to a witness caused by consecutive cross-examination because it “has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination” subject to the obligation to respect the rights of the accused.[3]

[1] Impugned Decision, para. 77.

[2] Decision, para. 47.

[3] Ibid, para. 48, referring to Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, 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. 29. Rule 90 (F) provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.”

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ICTR Rule Rule 48 ICTY Rule Rule 48
Notion(s) Filing Case
Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

The Appeals Chamber recalled that “the presentation of concurrent evidence or evidence that may not relate to an accused in the course of a joint trial does not, in and of itself, constitute serious prejudice to an accused.  In determining the guilt or innocence of an accused, it is to be expected that Judges of the International Tribunal will only take into account that evidence adduced to establish guilt with respect to that accused only.”[1]

[1] Decision, para. 38, referring to Pandurević Decision on Joinder, para. 25.

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ICTR Rule Rule 48 ICTY Rule Rule 48
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3]

[1] Impugned Decision, para. 80.

[2] Milošević Decision on Defence Counsel, paras. 7 and 16.

[3] Decision, paras. 11-12.

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber upheld in this decision another principle which had been laid down Milošević: the accused before the International Tribunal have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgement that they would be better off if represented by a counsel.[1]

[1] Decision, para. 42. The principle was affirmed in Milošević, Decision on Defence Counsel, para. 11.

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals chamber considered that, before restricting the accused’s right to self-representation, the Trial Chamber must issue an explicit warning specifically directed to the accused in the form of an oral or written statement. It held:

a warning with regard to possible assignment of counsel needs to be explicit, in the form of an oral or written statement to an accused explaining the disruptive behaviour and that, if it persists, the consequence will be restriction on the accused’s right to self-representation.[1]

[1] Decision, para. 26.

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

[1] Decision, para. 8. The principle was first established in Milošević, Decision on Defence Counsel, paras 11-13.

[2] Milošević Decision on Defence Counsel ,para. 14.

[3] Decision, para. 20. In affirming this principle, the Appeals Chamber explicitly recalled Prosecutor v. Goiko Janković & Radovan Stanković, Case No. IT-96-23/2-PT, Decision Following Registrar’s Notification of Radovan Stanković’s Request for Self-Representation, 19 August 2005, para.10.

[4] Decision, para. 21.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Trial Chamber, in the Impugned Decision[1], held that to restrict the right to self-representation during the pre-trial stage, the accused’s behaviour should provide, when considered as a whole,

 a strong indication that self-representation may substantially and persistently obstruct the proper and expeditious conduct of the proceedings.[2]

The Appeals Chamber agreed with the aforementioned approach adopted by the Trial Chamber, save for use of the word “may”, and held that the word “would” is more appropriate

as a Trial Chamber should have a high degree of certainty before exceptionally placing a restriction on the right to self-representation pre-emptively at the pre-trial stage before an accused has had the opportunity to conduct his own defence at trial.[3]

[1] Prosecutor v. Vojislav Šešelj, Case No. IT-06-67-PT, Decision on Assignment of Counsel (“Impugned Decision”), 21 August 2006, para. 14

[2] Impugned Decision, paras 74 and 79.

[3] Decision, para. 28.

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Decision on Assignment of Counsel - 20.10.2006 ŠEŠELJ Vojislav
(IT-03-67-AR73.3)

The Appeals Chamber reaffirmed the validity of the proportionality principle as stated in the Milošević Decision on Defence Counsel.[1] In restricting the accused’s right to self-representation, the Trial Chamber must impose restrictions that are limited to the minimum extent necessary to protect the International Tribunal’s interest in assuring a reasonably expeditious trial.[2]

[1] 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 (“Milošević Decision on Defence Counsel”).

[2] Decision, para. 48. The principle was first expressed in the Milošević Decision on Defence Counsel,para. 17.

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Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

24. Marijačić was convicted of contempt for the disclosure of information in knowing violation of an order of a Chamber pursuant to Rule 77(A)(ii). The Trial Chamber rightly pointed out that the order in question applies to all persons coming into possession of the protected information, given that Rule 79 is directed at the public in general, including the press, being present in court or not. Also, Rule 77(A)(ii) as such gives jurisdiction to the International Tribunal to hold in contempt any person who discloses information relating to proceedings before the International Tribunal in knowing violation of an order of a Chamber. This is necessary in particular in order to comply with the International Tribunal’s obligation pursuant to Article 22 of the Statute to protect witnesses on whose behalf protective measures have been ordered, and it is ultimately necessary for the International Tribunal to fulfil its mandate.[1] […]

[1] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-AR77, Appeal Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, p. 4: “[I] n order to function effectively and fairly, the International Tribunal must have the power to prosecute and punish contempt”.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-R77.4, Contempt Proceedings Against Kosta Bulatović – Decision on Contempt of the Tribunal, 13 May 2005, para. 17.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

45. A court order remains in force until a Chamber decides otherwise. The Appeals Chamber proprio motu notes that the fact that the aforementioned information today is no longer confidential does not present an obstacle to a conviction for having published the information at a time when it was still under protection.[1] Although the reason for the Closed Session Order (to protect the status of the information provided by the Witness) no longer exists, the legal rationale (protected information has to remain so until confidentiality is lifted) is still applicable. To hold otherwise would mean to undermine all protective measures imposed by a Chamber without an explicit actus contrarius, thus endangering the fulfilment of the International Tribunal’s functions and mandate.

[1] The same rationale applies that forms the basis of the principle of temporary law/regime, thus constituting, mutatis mutandis, an exception to the general principle of lex mitior.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

42. Rule 79 of the Rules lists three reasons for holding closed sessions, one of which is the safety, security or non-disclosure of the identity of a witness as provided in Rule 75 of the Rules. The consequence of a closed session is that all information mentioned therein including the identity of the witness who testifies is protected from the public. It is not for third parties to determine which part of a closed session is protected. […]

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ICTY Rule Rule 79
Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

15. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice. The settled standard of review applicable for appeals against judgements also applies to appeals against convictions for contempt. A party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error allegedly invalidates the decision.[1]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvočka Appeal Judgement”), para. 16; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeal Judgement”), para. 10.

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Decision on Reconsideration of Decision for Review - 27.09.2006 NIYITEGEKA Eliézer
(ICTR-96-14-R)

In this decision, the ICTR Appeals Chamber rejected Niyitegeka’s request to reconsider its prior denial of a request for review of the appeals judgement. By majority, the Appeals Chamber applied the position taken in Prosecutor v. Zoran Žigić wherein the ICTY Appeals Chamber held that it has “no power to reconsider a final judgement” because it is inconsistent with the Statute of the International Tribunal to provide a “second right of appeal by the avenue of reconsideration of a final judgement.”[1] The Appeals Chamber reasoned that a final judgement is a decision that terminates the proceedings in a case and held that, because its decision on Niyitegeka’s request for review was a final decision closing the proceedings in this case, it would not reconsider this decision.

Paras 1-5: In a separate declaration, Judge Shahabuddeen agreed with the Appeals Chamber’s conclusion that Niyitegeka’s request for reconsideration should be denied; however, he based his decision on the merits of Niyitegeka’s application. Judge Shahabuddeen disagreed with the majority’s view that it may not reconsider a decision on request for review arguing that the Appeals Chamber does in fact have jurisdiction to reconsider such a decision, which is not subject to any further appeal or review proceedings, in order to correct a clear miscarriage of justice. Judge Shahabuddeen noted that while the reconsideration of a decision on a request for review should be limited to exceptional circumstances, it should not be precluded altogether.

Paras 1-4: In a separate opinion, Judge Meron also agreed that Niyitegeka’s request for reconsideration should be dismissed. However, as he did not participate in the Žigić decision, he reached this conclusion solely on the grounds that Niyitegeka’s arguments failed to meet the requirements necessary to obtain reconsideration. Before addressing the merits of Niyitegeka’s request, Judge Meron expressly reserved his position on whether the Appeals Chamber may reconsider its final judgements.

[1] See Žigić Decision on Reconsideration of Appeal Judgement, 26 June 2006 (full text and summary provided in the AC Case Law Research Tool).

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ICTR Rule Rule 120 ICTY Rule Rule 119
Notion(s) Filing Case
Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Paras 42-46: the Appeals Chamber found that when a party wishes to object to the introduction of evidence of certain material facts on the basis of lack of notice of these material facts, it should do so at the time the evidence is introduced. Nonetheless,

45. […] [W]hen an objection based on lack of notice is raised at trial (albeit later than at the time the evidence was adduced), the Trial Chamber should determine whether the objection was so untimely as to consider that the burden of proof has shifted from the Prosecution to the Defence in demonstrating whether the accused’s ability to defend himself has been materially impaired. In doing so, the Trial Chamber should take into account factors such as whether the Defence has provided a reasonable explanation for its failure to raise its objection at the time the evidence was introduced and whether the Defence has shown that the objection was raised as soon as possible thereafter. 

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Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Para. 18:

18. When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice has been given, it should exclude the challenged evidence in relation to the unpleaded material facts,[2] require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations,[3] or take other measures to preserve the rights of the accused to a fair trial.[4]  

[1] Prosecutor v. Anto Furund‘ija, Case No. IT-95-17/1-A, Judgement of 21 July 2000 (“Furund‘ija Appeal Judgement”), para. 61.

[2] In this connection, the Appeals Chamber recalls that a Chamber can find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded: Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, “Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the ‘Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ inadmissible’”, 2 July 2004, para. 15; Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-98-42-AR73, “Decision on Pauline Nyiramasuhuko’s Request for Reconsideration”, 27 September 2004, para. 12; Muvunyi Decision, para. 55 (“If evidence is relevant to a charge in the current indictment and is probative of that charge, then subject to any other ground for exclusion that may be advanced by the Defence, that evidence should be admissible.”).

[3] Kupreškić et al. Appeal Judgement, para. 92; Kvočka et al. Appeal Judgement, para. 31; Naletilić & Martinović Appeal Judgement, para. 25.

[4] For instance, in certain circumstances, the Trial Chamber could allow the Defence to recall witnesses for cross-examination after the Defence has completed further investigations: see The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, “Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment”, 19 December 2003 (“Karemera Decision”), para. 28. 

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Decision on Interlocutory Appeal on Questions of Law - 18.09.2006 BAGOSORA et al. (Military I)
(ICTR-98-41-AR73)

Para. 21(“curing” is likely to occur only in a limited number of cases):

21. The ICTY Appeals Chamber has explained that

in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.[1] 

Thus, “curing” is likely to occur only in a limited number of cases. In this connection, the Appeals Chamber is not convinced by the Trial Chamber’s suggestion, at paragraph 4 of the Impugned Decision, that a distinction should be made between cases “where the Prosecution knows of material facts at the time the indictment is filed, but fails to plead them” (in which cases curing would be exceptional) and cases where the material facts “are subsequently discovered” (in which cases curing would not be characterized as exceptional). Indeed, the risk of prejudice to the accused is the same in both types of cases.[2] In both types of cases, the defect in the indictment may be deemed cured only by the provision of timely, clear and consistent information to the accused.

Para. 26 (when numerous defects found to have been “cured”):

The Appeals Chamber agrees that when the indictment suffers from numerous defects, there may still be a risk of prejudice to the accused even if the defects are found to be cured by post-indictment submissions. In particular, the accumulation of a large number of material facts not pled in the indictment reduces the clarity and relevancy of that indictment, which may have an impact on the ability of the accused to know the case he or she has to meet for purposes of preparing an adequate defence. Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence. The Appeals Chamber finds that the Trial Chamber failed to do so in the Impugned Decision and therefore, instructs the Trial Chamber to reconsider the Impugned Decision on this basis.

Paras 29-30 (type of defects that can be cured):

29. The Appeals Chamber is not convinced by the arguments of the Appellant on this point. The Appeals Chamber first recalls the distinction between counts or charges (“accusations” in French) and “material facts”:

The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).[3]

It is clear that the omission of a count or charge from the indictment cannot be “cured” by the provision of timely, clear, consistent information.[4] Indeed, since the indictment is the only charging instrument,[5] the addition of counts or charges is possible only through amendment, as set out in Rule 50 of the Rules. However, it is also clear that the omission of a material fact underpinning a charge in the indictment can, in certain cases, be cured by the provision of timely, clear and consistent information.[6]

30. In this connection, the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused.[7] The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges,[8] the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[9]

Para. 35: The Appeals Chamber found that a defect in indictment could be cured by information conveyed in Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

35. The Appeals Chamber reiterates that, while the addition of a charge must necessarily be done through an amendment to the indictment, the omission of material facts from the indictment can in certain circumstances be cured without having to amend the indictment.[10] As to whether notice of a new material fact could be conveyed through a Prosecution motion to add a witness, the Appeals Chamber recalls that, as a general rule:

Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[11]

In determining whether a defective indictment was cured by timely, clear and consistent information, the Appeals Chamber has looked to the Prosecution pre-trial brief (together with its annexes and chart of witnesses)[12] or the Prosecution’s opening statement.[13] However, the Appeals Chamber never suggested that defects in the indictment could only be cured through the Prosecution pre-trial brief or its opening statement. The Appeals Chamber cannot exclude the possibility that a defect in the indictment could be cured through a Prosecution motion for addition of a witness, provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in stating that although disclosure of witness statements or potential exhibits are generally insufficient to put an accused on reasonable notice, a defect in the indictment could be cured by the information conveyed in a Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

Para. 37: The Appeals Chamber found that an accused can be put on reasonable notice of material facts omitted from indictment where an adjournment is ordered by the Trial Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.

37. In Kupreškić, the Appeals Chamber emphasized that

the Prosecution is expected to know its case before it goes to trial.  It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.  There are, of course, instances in criminal trials where the evidence turns out differently than expected.  Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.[14] 

Thus, when a new material fact is discovered at trial, the Trial Chamber should determine which measure(s) are required in the circumstances of the case to preserve the fairness of the proceedings. If the Trial Chamber decides that an adjournment is warranted, it could also order the Prosecution to amend the indictment for greater clarity, but this might not be required in every case. Accordingly, the Appeals Chamber does not find that the Trial Chamber erred in stating at paragraph 10 of the Impugned Decision that the accused was put on reasonable notice of material facts omitted from the indictment where “a lengthy adjournment was ordered by the Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.”

[1] Kupreškić et al. Appeal Judgement, para. 114. See also Cyangugu Appeal Judgement, para. 114.

[2] The only difference concerns the “level of blame” on the Prosecution: As stated in the Ntakirutimana Appeal Judgement (para. 125), “the practice of failing to allege known material facts in an indictment is unacceptable.”  

[3] [The Prosecution v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, “Decision on Prosecution Interlocutory Appeal Against Trial Chamber II Decision of 23 February 2005”, 12 May 2005], para. 19.

[4] Cyangugu Appeal Judgement, para. 32.

[5] Cyangugu Appeal Judgement, para. 114.

[6] Kupreškić et al. Appeal Judgement, para. 88; Kvočka et al. Appeal Judgement, para. 28; Naletilić & Martinović Appeal Judgement, para. 23; Cyangugu Appeal Judgement, para. 22.

[7] See Kupreškić et al. Appeal Judgement, para. 121; Ntakirutimana Appeal Judgement, para. 28.

[8] For examples of new material facts which could support separate charges against an accused, see Muvunyi Decision, paras 33 and 35.

[9] Karemera Decision, para. 28; Muvunyi Decision, para. 22. See also Kvočka et al. Appeal Judgement, para. 32.

[10] See supra paras 29-30.

[11] Niyitegeka Appeal Judgement, para. 197 (references omitted).

[12] Kupreškić et al. Appeal Judgement, para. 117; Ntakirutimana Appeal Judgement, paras 46-48; Kvočka et al. Appeal Judgement, paras 43-45 ; Naletilić & Martinović Appeal Judgement, paras 27, 45; Gacumbitsi Appeal Judgement, paras 57-58.

[13] Kupreškić et al. Appeal Judgement, para. 118; Kordić & Čerkez Appeal Judgement, para. 169; Kvočka et al. Appeal Judgement, paras 46-47.

[14] Kupreškić et al. Appeal Judgement, para. 92. See also Niyitegeka Appeal Judgement, para. 194; Blaškić Appeal Judgement, para. 220; Ntakirutimana Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 30-31; Naletilić & Martinović Appeal Judgement, para. 25; Cyangugu Appeal Judgement, para. 27.

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Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

15.     The Appeals Chamber recalls that the UN Security Council, acting under Chapter VII of the UN Charter as a legislator, has adopted the Statute and established the Tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintaining of peace in the former Yugoslavia. While the UN Security Council is not a judicial organ and is not provided with judicial powers, it exercises, in discharge of its functions, both decision-making and executive powers,[3] including those related to the mandates of the Tribunal’s Judges.[4]

[1] The Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Decision”), para. 38.

[2] Ibid., para. 37.

[3] Id.

[4] For example, pursuant to Article 13ter of the Statute, the ad litem judges of the Tribunal are elected by the General Assembly from a list submitted by the Security Council.

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Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

16.     Without assuming competence to adjudicate on the validity of a resolution passed by the Security Council, the Appeals Chamber considers that the UN Security Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function.

17.     The Appeals Chamber notes that the Security Council is not required to amend the Tribunal’s Statute in order to reflect all its resolutions. Contrary to what the Appellant appears to submit, the Security Council can address an administrative matter either by amending the Tribunal’s Statute or by simply adopting a resolution – as it did. Thus, the ability to decide on a case by case basis whether to extend an ad litem judge’s mandate and/or the three year cumulative service limitation falls within the Security Council’s discretionary powers.[1] The Appeals Chamber accordingly sees no merit in the Appellant’s arguments in this respect.

[1] See supra, para. 15 [reproduced below]; also see similar UN Security Council Resolutions, the most recent being S/RES/1705 (2006) of 29 August 2006, adopted following respective requests from the President of the International Criminal Tribunal for Rwanda (“ICTR”) and the UN Secretary-General, and authorizing Judge Solomy Balungi Bossa to continue sitting in the Butare case until its completion notwithstanding Article 12ter(2) of the ICTR Statute and the fact that by doing so she may exceed her elected term as an ad litem Judge; furthermore, UN Security Council Resolution S/RES/1482 (2003) of 19 May 2003 for the ICTR, extending the term of Judge Maqutu (permanent Judge) for purposes of finishing the Kamuhanda and the Kajelijeli trials, but not the Butare trial. By the same resolution, the UN Security-Council decided to extend mandates for Judges Dolenc and Ostrovsky (permanent Judges) to finish the Cyangugu case and for Judge Pillay to finish the Media case, which they began before expiry of their term of office. 

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Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

18.     Furthermore, the statutory limitation on the cumulative period of service of ad litem judges under Article 13bis(2) [sic: 13ter(2)] should be interpreted in light of its object, purpose, context and practical policy considerations, or raison d’être of the provision in question.[1] In this regard, the Appeals Chamber agrees with the Prosecution that “the choice of a three-year cumulative service limit appears to have been primarily motivated by budgetary considerations, and not by any issues concerning the fair trial of an accused”.[2] Further, even at the time of establishment of the mechanism providing for the institution of ad litem judges, it was considered logically conceivable that extensions of service might be necessary where a trial would last longer than three years.[3] It is obvious that, in these circumstances, preventing Judge Canivell from sitting in the Krajišnik case until the end of the trial would in fact be detrimental to the right of the Accused[4] to be tried without undue delay under Article 21 of the Statute, this being the expression of the fundamental right enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights of 1966.[5]

25.     […] Allowing Judge Canivell to sit until the end of the present case has been done out of a legitimate concern in this trial 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.[6]

[1] Cf. Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 12; Tadić Decision [The Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 88; See also Archbold, International criminal Courts (Practice, Procedure, Evidence), 2005, paras 5-22 through 5-41.

[2] Response, paras 29-31.

[3] Report of the Advisory Committee on Administrative and Budgetary Questions to the General Assembly, “Conditions of Service for the ad litem Judges of the International Tribunal for the Former Yugoslavia”, A/55/806, 23 February 2001, para. 14.

[4] And importantly, of other accused awaiting trial in the UN Detention Unit in The Hague.

[5] Article 14(3) of the ICCPR: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] (c) To be tried without undue delay […]”.

[6] 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 Defense Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006, p. 4; See supra, para. 25 [reproduced above].

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ICTR Statute Article 12 ter(2) ICTY Statute Article 13 ter(2)