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Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

9. As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in “many different situations – such as 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 (more frequently) in deciding points of practice or procedure.”[1] A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions.  It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings. The Appeals Chamber therefore reviews the Trial Chamber’s decision only to the extent of determining whether it properly exercised its discretion in imposing counsel on Milošević.

[1] Prosecutor v. Milošević, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, 18 April 2002 (hereinafter “Refusal to Order Joinder”), para. 3.

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Notion(s) Filing Case
Decision on Assignment of Counsel - 01.11.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

10. In reviewing this exercise of discretion, the question is not whether the Appeals Chamber agrees with the Trial Chamber’s conclusion, but rather “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[1]  In order to challenge a discretionary decision, appellants must demonstrate that “the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion,” or that the Trial Chamber “[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 the Trial Chamber’s decision was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[2]  In practice, this array of factors boils down to the following simple algorithm:  a Trial Chamber’s exercise of discretion will be overturned if the challenged decision was (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.  Absent an error of law or a clearly erroneous factual finding, then, the scope of appellate review is quite limited:  even if the Appeals Chamber does not believe that counsel should have been imposed on Milošević, the decision below will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.

[1] Refusal to Order Joinder, para. 4.

[2] Refusal to Order Joinder, paras. 5-6.

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Decision on Joint Criminal Enterprise - 22.10.2004 RWAMAKUBA André
(ICTR-98-44-AR72.4)

14. Norms of customary international law are characterized by the two familiar components of state practice and opinio juris.  In concluding that customary international law permitted a conviction for, inter alia, a crime against humanity through participation in a joint criminal enterprise, the Tadić Appeals Judgement held that the recognition of that mode of liability in prosecutions for crimes against humanity and war crimes following World War II constituted evidence of these components.[1]  The ICTY Appeals Chamber has placed similar reliance in other cases on proceedings held following World War II, including the proceedings before the International Military Tribunal and before tribunals operating under Allied Control Council Law No. 10 (Control Council Law No. 10”), as indicative of principles of customary international law at that time.[2]  For the reasons that follow, the Appeals Chamber concludes that these proceedings, as well as the text and drafting history of the Genocide Convention of 1948, lead to the conclusion that customary international law criminalized intentional participation in a common plan to commit genocide prior to 1992.

[1] Tadić Appeal Judgement, paras. 195-220.

[2] See, e.g., Prosecutor v. Furundžija, No. IT-95-17/1-T, Trial Chamber Judgment, 10 December 1998, paras. 195, 211, 217; Tadić Appeal Judgment, paras. 200, 202; see also Ojdanić Jurisdiction Appeal, Separate Opinion of Judge David Hunt, para. 12 (“It is clear that, notwithstanding the domestic origin of the laws applied in many trials of persons charged with war crimes at that time, the law which was applied must now be regarded as having been accepted as part of customary international law.”).

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Notion(s) Filing Case
Decision on Joint Criminal Enterprise - 22.10.2004 RWAMAKUBA André
(ICTR-98-44-AR72.4)

31. [...] The Appeals Chamber holds that customary international law recognized the application of the mode of liability of joint criminal enterprise to the crime of genocide before 1992, and that in consequence the statement to that effect in the Tadić Appeal Judgement was legally correct. Consequently, the International Tribunal has jurisdiction to try the Appellant on a charge of genocide through the mode of liability of joint criminal enterprise.

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Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

49. Rule 15bis(D) of the Rules explicitly prescribes that the “remaining Judges” may decide to continue the proceedings. The Appeals Chamber noted this in the Butare case: “The new Rule 15bis(D) gives judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge.”[1] The fact that the remaining Judges have ad litem rather than permanent status does not change anything under Rule 15bis(D). Article 12quater of the Statute unequivocally provides that ad litem Judges enjoy the same powers as the permanent Judges of the Tribunal, except in expressly delimited circumstances which do not include the power to decide to continue the proceedings under Rule 15bis(D).[2] Accordingly, on 21 June 2004, the Appeals Chamber directed the remaining Judges in the case to re-consider their decision to continue the proceedings with a substitute Judge after giving the parties an opportunity to be heard and taking account of their submissions.[3]

50. The Appeals Chamber finds that the remaining Judges were competent to render the Impugned Decision. […]

[1] Butare Appeal Decision [Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis (D), 24 September 2003], para. 11 (emphasis added).

[2] Article 12quater of the Statute provides in relevant parts:

1. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall:

(b) Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the International Tribunal for Rwanda;

2. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall not:

(b) Have power:

(i) To adopt rules of procedure and evidence pursuant to article 14 of the present Statute. They shall, however, be consulted before the adoption of those rules;

(ii) To review an indictment pursuant to article 18 of the present Statute;

(iii) To consult with the President of the International Tribunal for Rwanda in relation to the assignment of judges pursuant to article 13 of the present Statute or in relation to a pardon or commutation of sentence pursuant to article 27 of the present Statute;

(iv) To adjudicate in pre-trial proceedings.

See also Karemera and Nzirorera v. Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals regarding Participation of Ad Litem Judges, 11 June 2004, p. 3 (“[P]ursuant to Article 12 quater of the Statute of the International Tribunal, ad litem judges enjoy the same powers as the permanent judges of the International Tribunal, with the exception of the right to review an indictment, the right to adjudicate in pre-trial proceedings and other administrative matters specifically enumerated in paragraph 2 of Article 12 quater of the Statute of the International Tribunal.”).

[3] Decision in the Matter of Proceedings under Rule 15bis(D) [21 June 2004], para. 13.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

58. In the view of the Appeals Chamber, the remaining Judges erred in considering that the substitute Judge should evaluate the “compatibility” of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings.[1] This observation is incorrect because, under the Rules, the substitute Judge is not called upon to evaluate whether, in the circumstances, the lack of video-recordings is incompatible with the requirements of a fair trial. Rather, the substitute Judge is to “familiarise” himself or herself with “the record” of the proceedings, whatever that record may contain.[2] In any event, this is done after the remaining Judges decide to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial. Moreover, even if the substitute Judge would decide that fair trial demands that he or she observe the protected witnesses during their testimony, the substitute Judge alone could not ensure their recall.[3]

[1] Impugned Decision, para. 104.

[2] See Rule 15bis(D). As Judge Hunt pointed out in his Butare dissent, Rule 15bis(D) “does not give to the substituted Judge either the power or the obligation to determine the adequacy of the record of proceedings.” Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

[3] See Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

59. The Appeals Chamber also finds that in reaching the Impugned Decision the remaining Judges took into account an immaterial consideration, namely, the fact that the testimonies were given in a language not understood by the Bench […]

60. The Tribunal has repeatedly emphasized the importance of observing the demeanour of witnesses and, indeed, it is this first-hand observation which is the basis for the Appeals Chamber’s deference to the factual findings of Trial Chambers.[1] The Appeals Chamber considers that the importance of evaluation of the demeanour of witnesses by the triers of fact cannot be discounted on the ground that the witnesses may speak through an interpreter. Even when this is the case, the Judges observing the witness testify have an opportunity to see his or her demeanour, assess it, and weigh the evidence accordingly.

[1] For example in Rutaganda, the Appeals Chamber stated the following: “It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber. Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying, and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility, and to determine the probative value to ascribe to the evidence presented at trial.Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, para. 21 (citations omitted, emphasis added). The Appeals Chamber also observed that in reviewing the factual findings of Trial Chambers it only has at its disposal transcripts of the testimonies. Id. n. 36.

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Decision on Attendance at Memorial Services - 21.10.2004 SIMIĆ Blagoje
(IT-95-9-A)

14.     In accordance with the criteria set out in Rule 65(I) of the Rules for granting provisional release, the Appeals Chamber will first determine whether it is satisfied that, if released, the Appellant will surrender into detention at the conclusion of the fixed period. With regard to the applicable standard of proof, the Appeals Chamber recalls that Rule 65 of the Rules provides for provisional release for an accused as well as for a convicted person. The specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release.” As to the burden of proof that an applicant must meet in order to satisfy the Appeals Chamber, there is no explicit or implicit provision in the Rules suggesting that a higher standard of proof should be applied on appeal. The Appeals Chamber deems that the inclusion of a provision on provisional release in the Rules was driven by humane and compassionate considerations together with concerns related to the principle of proportionality in international law. These concerns remain even if the applicant has been convicted at trial. The Appeals Chamber considers that the fact that the person has already been sentenced is a matter to take into account when balancing the probabilities. 

15.     The Appeals Chamber considers that the seriousness of the offences of which an appellant has been found guilty is one of the factors it has to take into account when assessing whether an appellant, if released, would return to detention. It is evident that the more severe the sentence is, the greater is the incentive to flee. The Appeals Chamber recalls, however, that this cannot be the sole factor that determines the outcome of an application for provisional release.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Attorney Jovan Simić - 06.10.2004 MEJAKIĆ et al.
(IT-02-65-AR73.1)

This interlocutory appeal decision turned on whether it constituted a conflict of interest for Mr. Jovan Simić to act as counsel for both Željko Mejakić, one of the accused in the case of Prosecutor v. Mejakić et al., and Dragoljub Prcać, an accused in the case of Prosecutor v. Kvočka et al. The Prosecution submitted that should the accused Prcać be called to testify in the Mejakić et al. case, it would be difficult for Mr. Simić, as counsel for both accused, to reconcile his duty to protect the interests of each accused. The Appeals Chamber held as follows:

7. The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system. The Trial Chamber, however, considered that it had a statutory obligation to ensure a fair and expeditious conduct of the proceedings, and that from this obligation it derived the power to decide on the Prosecution’s motion alleging a conflict of interest.[1] The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojević of 7 November 2003.[2] In that decision, the Appeals Chamber confirmed that the Trial Chamber has an inherent power to ensure that the trial of an accused is fair. However, the Appeals Chamber warned that in exercising this power the Trial Chamber cannot appropriate for itself a power that is conferred elsewhere.[3] The Directive on Assignment of Defence Counsel[4] does not provide any specific procedure for the removal of Defence Counsel in the case of a conflict of interest at the request of the Prosecution, and as such, the Trial Chamber could rely on its inherent power to review the assignment of Mr. Simić.

8. The right to choose counsel is a fundamental right of the accused and is recognized by Article 21(4) (b) and (d) of the Statute of the International Tribunal (“Statute”). However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing.”[5] One of the limits to the accused’s choice is a conflict of interest affecting his counsel. Under Article 14 of the Code of Conduct,[6] a counsel may not represent a client when this representation affects or can affect the representation of another client. [….]

This requirement is reflected by Article 16 (E) of the Directive on Assignment of Defence Counsel:

E.         No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest. [THIS PROVISION WAS AMENDED WITH THE ENTRY INTO FORCE ON 11 JULY 2006 OF THE DIRECTIVE ON THE ASSIGNMENT OF DEFENCE COUNSEL, IT/73 Rev 11. AS AMENDED.]

Mr. Simić had acknowledged a potential conflict of interest and, following the procedure laid out under Article 14 of the Code of Conduct, obtained the written consent of both Mr. Mejakić and Mr. Prcać to represent each of them.

[…]

12. The Appeals Chamber finds that a conflict of interests does exist at the present stage of  the proceedings. It is not contested that Mr. Mejakić was the direct superior of Mr. Prcać in the Omarska camp. Mr. Mejakić is charged with crimes committed in the Omarska camp under Article 7 (1) of the Statute for participating in a joint criminal enterprise. In addition, he is charged under Article 7 (3) of the Statute, on the basis that he was the commander of the camp and had effective control over the guard shift commanders, camp guards, and other persons working within or visiting the Omarska camp. Further, the Prosecution claims that Mr. Prcać has given evidence incriminating Mr. Mejakić in an interview with the Prosecution in the Kvočka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcać’s evidence significant and allowed the Prosecution to include Mr. Prcać in its witness list.[7]

[…]

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcać and Mr. Mejakić is not resolved at the present stage of proceedings, the administration of justice may be irreversibly prejudiced. The Appeals Chamber considers that the conflict of interest is an important one. The Trial Chamber noted in its First Decision that Mr.  Mejakić did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcać spent some time there under his command.[8] Mr. Mejakić is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcać may give evidence on the command structure of the Omarska camp as well as on the particular offences committed in this camp. The evidence given by Mr. Prcać may therefore have a significant impact on the trial of Mr. Mejakić.

15. The decision by Mr. Prcać whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcać and on the conduct of the Mejakić trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakić, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcać. There is finally the risk that Mr. Simić might withdraw in the course of the trial because of the conflict of interest, thus delaying the proceedings. For these reasons also the Appeals Chamber finds that the representation of both Mr. Mejakić and Mr. Prcać by Mr. Simić is likely to irreversibly prejudice the administration of justice.

[1] First Decision [Decision on Prosecution motion to resolve conflict of interest regarding attorney Jovan Simić, 18 September 2003], p. 2.

[2] 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.

[3] Idem, para. 7.

[4] Directive on Assignment of Defence Counsel, IT/73, Rev 9, as amended on 12 July 2002.

[5] Prosecutor v. Akayesu, Case No. ICTR-96-4A, Appeals Chamber Judgement, 1 June 2001, para. 61.

[6] Code of professional conduct for counsel appearing before the International Tribunal, IT/125 rev. 1, as amended on 12 July 2002 (“Code of Conduct”).

[7] Decision on Prosecution motion for leave to amend its Rule 65ter witness and exhibit lists, 18 February 2004.

[8] First Decision, p. 3.

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ICTR Statute Acticle 20(4)(d) ICTY Statute Acticle 21(4)(d) Other instruments Directive on the Assignment of Defence Counsel (ICTY), Article 16; Code of Professional Conduct for Counsel Appearing Before the International Tribunal.
Notion(s) Filing Case
Decision on Provisional Release - 30.09.2004 SIMATOVIĆ Franko
(IT-03-69-AR65.2)

2. The Prosecution seeks leave to appeal the Impugned Decision pursuant to Rules 65(D) and 65 (F) of the Rules of Procedure and Evidence (“Rules”). For leave to appeal to be granted by the Appeals Chamber the Prosecution is required to demonstrate good cause. [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] For the purposes of Rule 65, the jurisprudence of the Tribunal establishes that good cause will be shown if the applicant satisfies the Appeal Chamber that the Trial Chamber may have erred in the Impugned Decision.[1] While the Prosecution is required only to show the possibility of error on the part of the Trial Chamber for good cause to be established, the prior jurisprudence of the Tribunal shows that the Appeals Chamber will only grant leave where that possibility of error is clearly established.[2]

[1] Prosecutor v Blagoje Simić, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to

Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave

to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak

Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional

Release, 31 October 2003; Decision on Fatmir Limaj’ s Request for Provisional Release, 31 October 2003;

Prosecutor v Momčilo Krajišnik & Biljana Plašivić,  Case No. IT-00-39 & 40-AR65, Decision on Application for

Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžić, Case No. IT-01-47-AR65 & IT-0147-

AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case

No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to

Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 30.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1)

2. In order for the Application to be granted, the Prosecution is required to demonstrate good cause. The jurisprudence of the Tribunal establishes that “good cause” under Rule 65 will be established where the applicant demonstrates that the Trial Chamber may have erred in the Impugned Decision.[1] [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] While the Prosecution is only required to show the possibility of error on the part of the Trial Chamber for good cause to be established that possibility of error must be clearly established.[2]

 

 

 

 

[1] Prosecutor v Blagoje Simić et. al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional Release, 31 October 2003; Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003; Prosecutor v Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39 & 40-AR65, Decision on Application for Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžihasanović, Case No. IT-01-47-AR65 & IT-0147- AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

24. As indicated above, Rule 65(E) establishes the procedure by which the Prosecution should indicate its intention to seek a stay of a decision of a Trial Chamber granting an accused’s provisional release application. However, while the Appeals Chamber is of the view that Rule 127 should not be relied upon by the Prosecution as a means of circumventing the correct procedure set out in the Rules, the Appeals Chamber is also not persuaded that the Trial Chamber erred in applying that Rule to receive the Prosecution’s application for a stay as validly filed. The sole purpose of Rule 127(A)(ii) is to allow for exception to a strict application of the Rules where “good cause” exists for allowing that exception.

25. In the Impugned Decision, the Trial Chamber did not provide clear reasons for its finding that “good cause” existed for the application of Rule 127(A)(ii) to the requirements of Rule 65(E), but it was clearly within the Trial Chamber’s discretion to do so. In its stay application, the Prosecution made clear its intention to appeal the Impugned Decision. The “good cause”, as recently recognised by the Appeals Chamber in Prlić when it granted the Prosecution’s application for a stay of provisional release orders of a Trial Chamber, is the preservation of the object of the Prosecution’s appeal against the provisional release of the accused.[1] Preservation of the object of the appeal was the “concrete motivation” of the Judges of the Trial Chamber in granting the Prosecution’s stay application.

[1] Prosecutor v Jadranko Prlić et al, Case IT-04-74-AR65.1; IT-04-74-AR65.2; IT-04-74-AR65.3, Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal, 8 September 2004.

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ICTR Rule Rule 65;
Rule 116
ICTY Rule Rule 65;
Rule 127
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Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

23. The Appeals Chamber rejects the Prosecution’s argument that the appeal was incompetently certified by the Trial Chamber pursuant to Rule 73(B). The challenge made by Simatović and Stanišić is to the Trial Chamber’s grant of a stay in circumstances where the Prosecution failed to comply with the proper procedure of Rule 65(E). The main issue was whether the Trial Chamber erred in using Rule 127 to rectify the oversight of the Prosecution. In this circumstance, the Appeals Chamber does not accept the argument of the Prosecution that Rule 65 provides the only avenue of recourse to Simatović and Stanišić. While Rule 65(G) (iv) does provide an avenue for Simatović and Stanišić to seek release where a Trial Chamber has issued a stay of its decision ordering release, it does not operate to prevent an appeal of a stay decision issued by a Trial Chamber where the circumstances are such that the Trial Chamber determines that certification pursuant to Rule 73(B) is appropriate. [RULE 65(G)(iv) WAS DELETED IN THE AMENDMENTS OF THE RULES OF PROCEDURE AND EVIDENCE OF 21 JULY 2005.]

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
Notion(s) Filing Case
Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

26. The Trial Chamber issued the Impugned Decision without giving the defence an opportunity to respond to the Prosecution’s application. The Appeals Chamber is sympathetic to the arguments of Stanišić that he was denied an opportunity to be heard by the Trial Chamber. It is not persuaded, however, that this denial caused such prejudice to him as to warrant overturning the Impugned Decision. The Appeals Chamber is not persuaded by any of the arguments he has presented on this appeal that the Trial Chamber erred in issuing the Impugned Decision.

27. The Appeals Chamber is also not convinced that the Trial Chamber erred in granting the Prosecution’s application for a stay based upon a repetition of arguments presented by the Prosecution in opposition to Stanišić’s application for provisional release. The argument of the Prosecution in its application for a stay was that the Trial Chamber erred in its consideration of the Prosecution’s arguments when granting provisional release to Stanišić and that the Prosecution intended to seek leave to appeal those alleged errors to the Appeals Chamber. The Appeals Chamber is satisfied that the intention to seek leave to appeal constitutes sufficient grounds for the Trial Chamber’s grant of the stay application.

28. The Appeals Chamber does not accept the argument of Stanišić that he had a legitimate expectation that the Prosecution would not request a stay due to its failure to indicate its intention to do so in its original response to the applications for provisional release. The Prosecution’s opposition to his provisional release was made clear to him by its response to his application, and he could have expected the Prosecution to seek, by any means necessary, to prevent his provisional release once the Trial Chamber had determined that his application should be granted.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Order on Extension of Time - 21.09.2004 MILOŠEVIĆ Slobodan
(IT-02-54-AR73.7)

Trial Chamber III issued an oral decision on 2 September 2004 with written reasons to follow. Pursuant to Rule 73(B) of the Rules, Slobodan Milošević filed a request for certification to appeal the 2 September 2004 decision, which the Trial Chamber granted in an order issued 10 September 2004. Milošević subsequently filed a request with the Appeals Chamber for an extension of time in which to file the appeal against the 2 September 2004 decision, on the basis that the written reasons for the decision were still pending. The Appeals Chamber held, at p. 2:

NOTING that on 10 September 2004, Trial Chamber III issued an “Order on Request for Certification to Appeal the Decision of the Trial Chamber on Court Assigned Counsel,” which certified for appeal the question of whether representation by counsel should be imposed on Slobodan Miloševic (“Appellant”);

BEING SEIZED OF the “Request for Extension of Time to File Appeal Against the Trial Chamber’s Order Concerning the Representation of the Accused Dated 2 September 2004” filed by Appellant on 14 September 2004, in which Appellant requested an extension of the time limit to file a certified appeal under Rule 73(C)(ii);

CONSIDERING that, while Trial Chamber III has already issued an oral order finally resolving the question at issue in Appellant’s certified appeal, the Trial Chamber’s formal written decision has yet to issue;

DEEMING the lack of a reasoned written decision “good cause” for an extension of the time limit under Rule 127 of the Rules of Procedure and Evidence, since the lack of a written decision hampers counsel’s efforts to fully comprehend the reasons for the Trial Chamber’s decision;

HEREBY GRANT Appellant’s motion […] 

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Reconsideration etc. - 08.09.2004 PRLIĆ et al.
(IT-04-74-AR65.1, IT-04-74-AR65.2, IT-04-74-AR65.3 )

8. The arguments made by Petković relate to the issue of whether the duty judge exceeded the jurisdiction conferred upon her under the Rules. While the Appeals Chamber agrees with the submission of the Prosecution that the arguments of Petković are moot, the Appeals Chamber nevertheless concludes that the duty judge did not exceed her authority in remitting the motion to the Trial Chamber and ordering that the accused remain in custody pending the resolution of the Prosecution’s stay application by the Trial Chamber. Rule 28 of the Rules confers upon the duty judge the power to deal with applications in place of a Trial Chamber when that Trial Chamber is unavailable — such as when it is unable to convene in periods of court recess - provided that the duty judge is “satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber”.[1] Accordingly, the duty judge had the authority to grant the Prosecution’s application for a stay pending the resolution of the Prosecution’s motion for leave to appeal the Trial Chamber’s orders if she was satisfied as to its urgency or appropriateness. The action taken by the duty judge to remand the accused into custody pending the resolution of the motion she remitted to the Trial Chamber is clearly within the authority conferred upon a duty judge by Rule 28. Petković’s application is therefore dismissed.

[1] Rule 28(D)(ii) [Rules of Procedure and Evidence].

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ICTY Rule Rule 28
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Decision on Reconsideration etc. - 08.09.2004 PRLIĆ et al.
(IT-04-74-AR65.1, IT-04-74-AR65.2, IT-04-74-AR65.3 )

15. The Appeals Chamber does not accept the arguments of the accused that the Appeals Chamber was not competent to impose a stay. At the time of rendering its decision on the Prosecution’s application for a stay, the Prosecution’s application for leave to appeal the Trial Chamber’s grant of provisional release to the six accused was pending before the Appeals Chamber pursuant to Rule 65(D). In its decision, the Appeals Chamber clearly articulated that the decision to grant the Prosecution’s application for a stay was to preserve “the objective of the Prosecution’s appeal against the provisional release” of the accused.[1] Although the Appeals Chamber decision did not explicitly identify the Rules upon which it acted, the Rules clearly confer upon the Appeals Chamber the power to act as it did. Rule 107 confers upon the Appeals Chamber the competence to render any order or decision that could be rendered by a Trial Chamber. Read together with Rules 54, 64 and 65, Rule 107 empowers the Appeals Chamber to render a decision on an application for a stay filed before it. This is particularly so where the purpose of that decision is to preserve the objective of an appeal pending before it. The Appeals Chamber also rejects any argument that its power to render ancillary orders with respect to preserving the object of an appeal is restricted.

16. The Appeals Chamber also rejects the argument of the accused that by acting as it did it effectively denied the accused of a right to appeal. There is no basis in the Tribunal’s Statute or Rules for the accused’s contention that he has a right to appeal orders issued by the Appeals Chamber in aid of the exercise of its appellate function.

[1] Order on the Prosecution’s Motion for a Stay, 10 August 2004 (“Decision”).

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Jurisdiction - 31.08.2004 ŠEŠELJ Vojislav
(IT-03-67-AR72.1)

12. The Appeals Chamber agrees that the issue on this appeal is one of statutory interpretation. As was stated by the Appeals Chamber in the Tadić Appeals Decision, the Statute of the Tribunal should be interpreted in light of its object and purpose.[1] Article 1 of the Tribunal’s Statute defines the territorial and temporal jurisdiction of the Tribunal conferring “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The object of the Security Council’s establishment of the Tribunal, as stated in Security Council Resolution 808 (1993), is to bring to an end the reported widespread violations of international humanitarian law, bring to justice the persons responsible for those violations, and contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. In drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia. At the meeting of the Security Council at which the Tribunal’s Statute was adopted, those members that addressed the scope of Article 5 of the Statute made clear their view that it encompassed widespread or systematic criminal acts committed against the civilian population on the territory of the former Yugoslavia during an armed conflict. [2]

13. As expressed in the jurisprudence of the Tribunal, the jurisdictional requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment, but it does not mandate any material nexus between the acts of the accused and the armed conflict.[3] While this interpretation itself offers little guidance on the meaning of “time and place relevant to the indictment”, the Tribunal’s jurisprudence on the application of Article 5 of the Statute points towards a broad interpretation. For example, there is no requirement that an attack directed against a civilian population be related to the armed conflict. As the Appeals Chamber in the Tadić Appeals Decision held: “The two — ‘the attack on the civilian population’ and the ‘armed conflict’ — must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict”.[4] Likewise, the above mentioned Tadić Appeals Chambers interpretation of the application of international humanitarian law, of which Article 5 is a part, supports a broad interpretation of the jurisdictional requirement that a crime against humanity be committed in armed conflict.

14. The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.

15. For the foregoing reasons the Prosecution’s Appeal is allowed and the Trial Chamber’s Impugned Decision is reversed.

[1] Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Case IT-94- 1 -AR72,

2 October 1995, par 88.

[2] Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, 25 May 1993, S/PV.

3217, 25 May 1993.

[3] Kunarac Appeals Judgment, par 83; Tadić Appeals Judgment, pars 249 and 251.

[4] Tadić Appeal Judgement, par 251.

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ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Decision on Time for Filing Brief - 02.08.2004 NIKOLIĆ Momir
(IT-02-60/1-A)

CONSIDERING that the recess of the Appeals Chamber does not mean that the time-limits prescribed under the Rules and the relevant Practice Directions stop running and that this ground does not constitute good cause within the meaning of Rule 127 of the Rules;

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ICTR Rule Rule 116 ICTY Rule Rule 127