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Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Motion to Strike Portion of Reply, 30 September 2002, p. 3. Cf. generally, Practice Direction on Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, para. 6. Cf. also Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Prosecution’s Motion to Strike Parts of the Brief in Reply, 27 September 2004, p. 3; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Prosecution’s Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief, 28 January 2005, p. 3; Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, para. 145.

[2] [“Appellant’s Reply to the Prosecutor’s Request to File a Response to [sic] Limited to Fresh Additionla [sic] Evidence Appended to ‘The Appellant Jean-Bosco Barayagwiza’s Extremely Urgent Corrigendum to the Rule 115 Motion Filed 28 December 2005, Pursuant to the Order of the Pre Trial [sic] Appeal Judge of 23rd January 2006’”, 16 February 2006 (“Reply to the Prosecution Request of 10 February 2006”), para. 1.]

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. The Appeals Chamber considers that the Appellant’s request for clarification is in fact a motion for reconsideration of the Decision of 23 January 2006 and finds that none of the arguments raised by the Appellant establish cause for reconsideration.[1] […]

footnote 19: The Appeals Chamber has an inherent discretionary power to reconsider its own previous interlocutory decisions if the existence of a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice. […] No such error or injustice has been shown here.

[1] The Appeals Chamber has an inherent discretionary power to reconsider its own previous interlocutory decisions if the existence of a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice (Decision of 4 February 2005, p. 2; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203). No such error or injustice has been shown here.

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Notion(s) Filing Case
Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

9. […] Pursuant to Rule 115(C) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may decide a motion for leave to present additional evidence on appeal “with or without an oral hearing”. Generally, the granting of an oral hearing is a matter for the discretion of a Chamber and may legitimately be regarded as unnecessary when the information before the Chamber is sufficient to enable it to reach an informed decision.[1] In the instant case, the Appeals Chamber finds that the Appellant has not put forward any convincing reasons justifying that written submissions are inadequate to put forward his arguments in relation to the Rule 115 Motion and thus, does not consider that the efficient conduct of the present proceeding requires an oral hearing prior to rendering its decision on the Rule 115 Motion.[2]

[1] Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj Request for Provisional Release, 31 October 2003, para. 17; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005, para. 4; Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Savo Todović’s Application for Provisional Release, 7 October 2005, para. 29.

[2] The Appeals Chamber has on numerous occasions determined the admissibility of evidence without a separate oral hearing on a Rule 115 motion, including cases where evidence of gross negligence of counsel was involved: Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Decision (On the Consolidation or Summarization of Motions not yet Disposed of), 22 August 2000, p. 6; Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, Decision on the Appellant’s Motion for Admission of New Evidence, 13 June 2000 (Kambanda Decision of 13 June 2000); See also Prosecutor v. Zoran Kupreškić et al., Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, issued confidentially on 26 February 2001, paras 52, 62, 66.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 102-103: on the basis of the same rationale allowing for cumulative charging, charges brought in the alternative are also permissible. This is nevertheless only a general rule: depending on the circumstances of the case, alternative charging may still be deemed impermissible. 

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Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

[1] Naletilić and Martinović Appeal Judgement, para. 590.

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ICTY Statute Article 5(h)
Article 5(f)
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 109-122: relying on the Tadić Jurisdiction Decision, the Appeals Chamber recalled in para. 112 that the “international armed conflict” element has been incorporated into Article 2 of the Statute. It found that, if certain conduct becomes a crime under the Statute only if it occurs in an international armed conflict, then the existence of such a conflict is not only a jurisdictional element, but also a substantive element of the crime. Relying on the Kordić and Čerkez Appeal Judgement, para. 311, but more importantly on the principle of individual guilt which requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime (paras 113-114), the Appeals Chamber found that the Prosecution needs to prove the accused’s knowledge of the facts pertinent to/establishing the internationality of the armed conflict (paras 116, 121). However, it is of course not required that the accused correctly subsume these facts into a particular legal characterisation. 

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ICTR Statute Article 4 ICTY Statute Article 2
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 152-154: the Appeals Chamber found that there is no occasion in this case to define the elements of deportation as a crime against humanity under Article 5(d) of the Statute, because the Indictment included no charges under that Article. It also saw no need to consider the issue as a matter of general significance to the International Tribunal’s jurisprudence, as it had already been settled in the Stakić Appeal Judgement.[1]

Regarding deportation as a form of persecutions under Article 5(h) of the Statute, the Appeals Chamber referred to the Krnojelac Appeal Judgement, para. 218: for the purposes of persecutions, it is irrelevant whether “deportation” encompasses a border element, because acts of “forcible displacement” are equally punishable as underlying acts of persecutions whether or not a border is crossed. “Forcible displacement” also sufficiently captures underlying acts of “deportation” and “forcible transfer” (para. 154):

[…] the question whether “deportation” encompasses a border element is irrelevant for the purposes of liability under Article 5(h) of the Statute, because acts of forcible displacement are equally punishable as underlying acts of persecutions whether or not a border is crossed. It is moreover not necessary, for the purposes of a persecutions conviction, to distinguish between the underlying acts of “deportation” and “forcible transfer”; the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.

[1] Stakić Appeal Judgement, paras 274-308.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Para. 27, lines 4-8: the Prosecution’s Rule 65ter witness list may in some cases serve to cure a defective indictment.

Para. 27, lines 8-9: law developed to state that not only the mere service of witness statements, but also of potential exhibits, does not suffice to inform the accused of material facts that the Prosecution intends to prove at trial.

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ICTR Statute Article 20(4)(a) ICTY Statute Article 21(4)(a)
Notion(s) Filing Case
Appeal Judgement - 03.05.2006 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

Paras 599-601: mere facilitation by an accused of his transfer to the International Tribunal cannot be considered voluntary surrender. Nevertheless, the underlying rationale for treating voluntary surrender in mitigation also applies to an indictee’s facilitation of the transfer process. The Appeals Chamber found that Martinović facilitated his transfer. As such, this factor should have been considered in mitigation, and the Trial Chamber erred in finding that it “cannot” be considered. 

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

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

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

See paras 7-8:

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

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

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

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

[3] Krstić Appeal Judgement, para. 206.

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

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

[6] Impugned Decision, p. 8.

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

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

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ICTY Rule Rule 68 bis
Notion(s) Filing Case
Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.
(ICTR-98-44-AR73.6)

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[4] […]

[1] Kajelijeli Appeal Judgement, para. 262; Kordić and Čerkez Appeal Judgement, para. 179; The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3.

[2] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3. See also Kajelijeli Appeal Judgement, para. 262.

[3] See Impugned Decision, pp. 7, 8; T. 13 February 2006 p. 6 (“If you're saying the Prosecutor has not honoured a commitment and you're asking us to provide a remedy for doing so, we would need some evidence that would enable us to say that.”).

[4] Kordić and Čerkez Appeal Judgement, para. 183; Brđanin Decision, p. 3.

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Notion(s) Filing Case
Decision on Jurisdictional Appeals - 12.04.2006 KAREMERA et al.
(ICTR-98-44-AR72.5, ICTR-98-44-AR72.6)

The Appeals Chamber held that “customary international law permits imposition of third category JCE liability on an accused for crimes committed by fellow participants in a JCE of ‘vast scope’” (para. 12).  Accordingly, the Appeals Chamber upheld (paras 12-18) the Trial Chamber’s decision not to find that third category JCE liability can be imposed only when the JCE is “limited to a specific operation and a restricted geographical area, and where the Accused was not structurally remote from the actual perpetrators of the crimes.”[1] 

The Appeals Chamber, however, cautioned that (para. 17):

Third category JCE liability can be imposed only for crimes that were foreseeable to an accused. In certain circumstances, crimes committed by other participants in a large-scale enterprise will not be foreseeable to an accused.

[1] Prosecutor v. Karemera et al., Case No. ICTR-98-44, Decision on Defence Motion Challenging the Jurisdiction of the Tribunal – Joint Criminal Enterprise Rules 72 and 73 of the Rules of Procedure and Evidence, 5 August 2005, para. 4 (internal footnotes omitted).

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

25. In support of their second ground of appeal, the Appellants submit that the Referral Bench “misconstrued” the Defence’s argument that they needed access to findings and evidence from other proceedings before the International Tribunal “arising out of the same alleged criminal enterprise” since they are crucial for the preparation of their defence; they claim that if their case is referred to BiH they will have no access to such materials. [1] First, the Appeals Chamber notes that this argument is not relevant to the present ground of appeal and that no reference to the Appellants’ submissions before the Referral Bench on this issue is provided. If this issue was not raised before the Referral Bench, the Appellants cannot claim that their argument was “misconstrued” or that the Referral Bench failed to address a matter which was not brought before it, thereby committing an error of law or fact. Second, pursuant to Rule 11bis of the Rules, the Referral Bench was not required to consider the Appellants need to access materials from related proceedings before the International Tribunal (for the preparation of their defence) when reaching a determination concerning the assessment of the gravity of the crimes and the level of responsibility of the Appellants. Therefore, the Appellants have failed to show that the Referral Bench erred in law. [W]ith respect to access to confidential materials from related cases before the International Tribunal, defence counsel in a proceeding in BiH, like the BiH Prosecutor, may request that the Prosecutor of the International Tribunal applies to vary protective measures under Rule 75 of the Rules.[2] Thus, the relevant parties to the proceeding in the national jurisdiction – both the Prosecutor and the Appellants – are on equal footing in terms of their ability to gain access to confidential materials from other International Tribunal cases.[3]

[1] Ibid., para. 38.

[2] See Decision on Registrar’s Submission on a Request from the Office of the Chief Prosecutor of Bosnia and Herzegovina pursuant to Rule 33(B), IT-05-8-Misc 2 (6 April 2005). 

[3] Stanković Rule 11bis Appeal Decision [Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005], para. 24; Janković Rule 11bis Appeal Decision [Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005], para. 51.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

At para. 31, the Appeals Chamber confirmed the Referral Bench’s finding that regardless of the way an accused is transferred to the Tribunal, “transfer pursuant to Rule 11bis would not amount to an extradition stricto sensu”.[1] It held:

31. […] The Referral Bench’s reliance on the Kovačević Decision in support of the proposition that regardless of the manner in which the Appellants were originally transferred to the International Tribunal, referral pursuant to Rule 11bis of the Rules would not amount to an extradition stricto sensu, is correct.[2] Accordingly, the Referral Bench properly concluded that the treaty or national law governing extradition does not apply to prevent the referral of the Appellants’ case pursuant to Rule 11bis of the Rules because, as with the initial transfer of the Appellants to the International Tribunal, their transfer to the State authorities under Rule 11bis is not the result of an agreement between the State and the International Tribunal.[3] The Appeals Chamber recalls that the obligation upon States to cooperate with the International Tribunal and comply with its orders arises from Chapter VII of the United Nations Charter. Accordingly, a State cannot impose conditions on the transfer of an accused, or invoke the rule of specialty or non-transfer concerning its nationals.[4] The referral procedure envisaged in Rule 11bis is implemented pursuant to a Security Council resolution, which, under the United Nations Charter, overrides any State’s extradition requirements under treaty or national law.[5]

[1] Prosecutor v. Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11bis with Confidential Annex, Referral Bench, 20 July 2005 (“Impugned Decision”), para. 31, relying on Prosecutor v. Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998.

[2] Impugned Decision, para. 31.

[3] Ibid; see also Decision on Joint Defence Motion to Admit Additional Evidence Before the Appeals Chamber pursuant to Rule 115, 16 November 2005, para. 39 (“Mejakić et al. Rule 115 Decision”).

[4] Impugned Decision, para. 31; Mejakić et al. Rule 115 Decision, para. 39.

[5] U.N. Doc. S/Res/1503 (2003) 28 August 2003.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

At para. 24, the Appeals Chamber recalled its finding in the Janković case:

Nothing in Rule 11bis of the Rules indicates that [a] Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it.[1]

[1] Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, (“Janković Rule 11bis Appeal Decision”), para. 26. 

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

At para. 48, the Appeals Chamber held:

The Referral Bench had no obligation to determine which jurisdiction provided guarantees of enforcing the more lenient law on the Appellants in the case of referral; it had only to satisfy itself that there were appropriate provisions —within the legal framework of BiH— to address the criminal acts alleged in the Indictment and that there was an adequate penalty structure in place.

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

32. […] The Referral Bench was entitled to secure the presence of an accused that had been provisionally released in order to deliver its decision on the referral of his case and make sure that the said decision could be implemented. As the Prosecution points out, pursuant to Rule 11bis(H) of the Rules — which states that a Referral Bench shall have the powers of a Trial Chamber under the Rules — the Referral Bench had the power to order the return of Momčilo Gruban.[1]

On the powers of the Referral Bench, see more generally Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 50 ff (referred to at paras 94 ff. of the present Decision).

[1] Cf. Rule 65(C) and (I).

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

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

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

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

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

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

[3] Ibid., para. 4.

[4] Ibid., para. 5.

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

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ICTR Rule Rule 11bis ICTY Rule Rule 11bis
Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

[1] Trial Judgement, para. 915.

[2] Kayishema and Ruzindana Trial Judgement, para. 26.

[3] Ntakirutimana Trial Judgement, para. 153.

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Notion(s) Filing Case
Appeal Judgement - 22.03.2006 STAKIĆ Milomir
(IT-97-24-A)

In the Trial Judgement, the Trial Chamber expressed reservation about the doctrine of joint criminal enterprise (“JCE”)[1] and applied, instead of JCE, a mode of liability it defined as “co-perpetratorship”.[2] The Appeals Chamber held that this mode of liability was “new to the jurisprudence of the Tribunal”,[3] that “[t]he introduction of new modes of liability into the jurisprudence of the Tribunal may generate uncertainty, if not confusion, in the determination of the law by parties to cases before the Tribunal as well as in the application of the law by Trial Chambers”,[4] and therefore decided proprio motu to assess whether this mode of liability was consistent with the case-law of the Tribunal[5] and whether, as defined by the Trial Chamber, it had support in customary international law. It held the following:

62. Upon a careful and thorough review of the relevant sections of the Trial Judgement, the Appeals Chamber finds that the Trial Chamber erred in conducting its analysis of the responsibility of the Appellant within the framework of “co-perpetratorship”. This mode of liability, as defined and applied by the Trial Chamber, does not have support in customary international law or in the settled jurisprudence of this Tribunal, which is binding on the Trial Chambers. By way of contrast, joint criminal enterprise is a mode of liability which is “firmly established in customary international law”[6] and is routinely applied in the Tribunal’s jurisprudence.[7] Furthermore, joint criminal enterprise is the mode of liability under which the Appellant was charged in the Indictment, and to which he responded at trial.[8] In view of these reasons, it appears that the Trial Chamber erred in employing a mode of liability which is not valid law within the jurisdiction of this Tribunal. This invalidates the decision of the Trial Chamber as to the mode of liability it employed in the Trial Judgement.

[1] Trial Judgement, para. 441.

[2] Trial Judgement, paras 468-498.

[3] Judgement, para. 58.

[4] Judgement, para. 59.

[5] Judgement, para. 59.

[6] Tadić Appeal Judgement, para. 220.

[7] See Kvočka Appeal Judgement, para. 79; Vasiljević Appeal Judgement, para. 95; Krstić Appeal Judgement, paras 79–134; Ojdanić Decision on Jurisdiction, paras 20, 43; Furundžija Appeal Judgement, para. 119; Krnojelac Appeal Judgement paras 29-32; Čelebići Appeal Judgement, para. 366; Tadić Appeal Judgement, para. 220, Prosecutor v. Radoslav Brđanin & Momir Talić, Case No: IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24; Babić Judgement on Sentencing Appeal, paras 27, 38, 40.

[8] Prosecution’s Final Pre-Trial Brief, (Revised April 2002), 5 April 2002, paras 3, 4, 13, 20, 21, 82, 98, 125.

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