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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

When considering a submission of the Appellant that the Trial Chamber should have raised the issue of counsel, the Appeals Chamber held:

25. The fact that the Appellant made no objection before the Trial Chamber to the Registry’s decision means that, in the absence of special circumstances, he has waived his right to adduce the issue as a valid ground of appeal.[1] In the instant case, the Appeals Chamber adopts the conclusions of the ICTY Appeals Chamber in the Tadić case:

The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo […][2].

27. The Appeals Chamber agrees with the position of the Human Rights Committee, established under the International Covenant on Civil and Political Rights, which in one of its findings affirms that

[a Party] would not [be] allowed, unless special circumstances could be shown, to raise issues on appeal that had not previously been raised by counsel in the course of the trial[3].

41. The Appeals Chamber has set out above the consequences which attend a failure to raise an issue before the Trial Chamber. As a matter of principle, where a party has failed to bring an issue to the attention of the court of first instance it is debarred from raising it on appeal. Exceptions to this rule will only be made where the particular circumstances of the case demand, for example because the matter could not realistically have been raised earlier. It is for the moving party to convince the court that such exceptional circumstances exist.

[1] See “Judgement”, The Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, App. Ch., 21 July 2000, para. 174.

[2] “Judgement”, The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, App. Ch., 15 July 1999, para. 55.

[3] Albert Berry v. Jamaica, Comm. No. 330/1998, 26 April 1994, UN doc. CCPR/C/50/D/330/1998, para. 11.6. See also Glenford Campbell v. Jamaica, Comm. No. 248/1997, 30 March 1992.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

33. With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial[1]. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case[2] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules[3], read in conjunction with relevant decisions from the Human Rights Committee[4] and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5] that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.

[1] Appellant’s Brief [Brief in support of the Consolidated Notice of Appeal, 3 March 2000], paras. 17 – 21.

[2] “Decision on the Motions of the Accused for Replacement of Assigned Counsel”, The Prosecutor v. Gérard Ntakirutimana, Case No. ICTR-96-10-T and ICTR-96-17-T, 11 June 1997, p. 2 et seq.

[3] Textual analysis of subparagraph (d) of paragraph 4 of Article 20 of the Statute shows that the choice of assigned defence counsel is made, in any event, by an authority of the Tribunal, not the accused. This Article must be read in conjunction with Rule 45 of the Rules and Article 13 of the Directive on the Assignment of Defence Counsel, whereby the Registrar is the person authorized to make the choice. The Registrar therefore has no other obligation than to assign counsel whose name appears on the list of counsel who may be assigned, and is not bound by the wishes of an indigent accused.

[4] According to the Human Rights Committee, “article 14, paragraph 3 (d) [of the International Convention on Civil and Political Rights] does not entitle the accused to choose counsel provided to him free of charge”. Osbourne Wright and Eric Harvey v. Jamaica, Comm. No. 459/1991, 8 November 1995, UN Doc. CCPR/C/50/D/330/1988, para. 11.6.

[5] Article 6, subparagraph 3. C. of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) guarantees three rights, which may be exercised on mutually exclusive bases: to defend oneself in person or through legal assistance of one’s own choosing or, if one has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. See the account of developments in the exercise of these rights in Louis-Edmond Pettiti, Emmanuel Decaux, Pierre-Henri Imbert (eds.) La Convention Européenne des Droits de l’Homme, Commentaire article par article, (Economica, Paris, 1999) pp. 274-275. According to the Convention bodies, the right to legal assistance of one’s own choosing is not absolute (X v. United Kingdom, Eur. Comm. H.R., Judgement of 9 October 1978, Application No. 8295/78; Croissant v. Germany, Eur. Ct. H.R., Judgement (Merits) of 25 September 1992, Application No. 13611/88, Series A, no. 237-B, para. 29). It particularly does not apply when legal assistance is free. Indeed, Article 6 (3) (c) does not guarantee the right to choose the defence counsel who will be assigned by the court, nor does it guarantee the right to be consulted on the choice of the defence counsel to be assigned (X v. Federal Republic of Germany, Decision of 6 July 1976, Application No. 6946/75 and F v. Switzerland, Eur. Comm. H.R., Decision of 9 May 1989, Application No. 12152/86). In any event, the authority responsible for appointing counsel has broad discretionary powers: “[the right to counsel of one’s own choosing] is necessarily subject to certain limitations where free legal aid is concerned and also where […] it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel, the national courts must certainly have regard to the defendant’s wishes […]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.” (Croissant v. Germany, op. cit. supra, para. 29).

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ICTR Statute Article 20 (4)(d) ICTY Statute Article 21 (4)(d)
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

61. The Appeals Chamber holds that the conditions for accepting a plea agreement are firstly that the person pleading guilty must understand the consequence of his or her actions, and secondly that no pressure must have been brought to bear upon that person to sign the plea agreement. This position is reflected in the separate opinion of Judges McDonald and Vohrah in Erdemović, which stated that a voluntary plea requires two elements, namely that “an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty” and “the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.”[1]

[1] “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, Erdemović, para. 10.

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ICTR Rule Rule 62(B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

75. The Appeals Chamber agrees with the parties that the standard for determining whether a guilty plea is informed is that articulated by Judges McDonald and Vohrah in Erdemović such that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.[1]

[1] “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, Erdemović, paras. 14-19.

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ICTR Rule Rule 62 (B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

84. The Appeals Chamber notes that, as articulated by Judges McDonald and Vohrah in the Erdemović case, “[w]hether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.”[1] This Appeals Chamber agrees with this statement.

[1] Erdemović, “Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah”, para. 31.

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ICTR Rule Rule 62(B) ICTY Rule Rule 62 bis
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

97. The Appeals Chamber notes that Rule 111 expressly states that “[a]n Appellant’s brief shall contain all the argument and authorities.”[1] Although Rule 114 provides that “the Appeals Chamber may rule on… appeals based solely on the briefs of the parties”,[2] it also states that it can decide to hear the appeal in open court. It is intended that each party should advise the Appeals Chamber in full of all the arguments upon which they it wishes to rely in relation to each ground of appeal, through both written filings and orally.

98. However, in the case of errors of law, the arguments of the parties do not exhaust the subject. It is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia. Since the Appeals Chamber is not wholly dependent on the arguments of the parties, it must be open to the Chamber in proper cases to consider an issue raised on appeal even in the absence of substantial argument. The principle that an appealing party should advance arguments in support of his or her claim is therefore not absolute: it cannot be said that a claim automatically fails if no supporting arguments are presented.

[1] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 111 PROVIDED: “An Appellant's brief shall contain all the argument and authorities. It shall be served on the other party and filed with the Registrar within thirty days of the filing of the Appellant's brief.” AS A RESULT OF AMENDMENTS ON 5-6 JULY 2002, IT PROVIDED: “An Appellant’s brief setting out all the arguments and authorities shall be filed within seventy-five days of filing of the notice of appeal pursuant to Rule 108.” AS OF JULY 2013, THIS FORMULATION REMAINS UNCHANGED IN RULE 111(A).

[2] NOTE: AT THE TIME OF THE PRESENT JUDGEMENT RULE 114 PROVIDED: “After the expiration of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber may rule on such appeals based solely on the briefs of the parties, unless it decides to hear the appeal in open court. The Registrar shall notify the parties accordingly.” AS A RESULT OF AMENDMENTS ON 5-6 JULY 2002, IT PROVIDED: “After the expiry of the time-limits for filing the briefs provided for in Rules 111, 112 and 113, the Appeals Chamber shall set the date for the hearing and the Registrar shall notify the parties.”

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ICTY Rule Rule 111
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

117. Rule 101(B) is expressed in the imperative in that the Trial Chamber “shall take into account” the factors listed and therefore, if it does not, it will commit an error of law. Whether or not this would invalidate the decision is of course another question.

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ICTR Rule Rule 118(B) ICTY Rule Rule 117(B)
Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

55. The Appeals Chamber notes that the Appellant had several opportunities to raise any issues of fact on the basis of which he now alleges that his guilty plea was invalid, but failed to do so until after receiving a life sentence for the guilty plea. In the absence of a satisfactory explanation of his failure to raise the validity of the guilty plea in a timely manner before the Trial Chamber, the Appeals Chamber could find that the Appellant has waived his right to later assert that his guilty plea was invalid.  However, as this is the Chamber of last resort for the Appellant facing life imprisonment on the basis of his guilty plea, and as the issues raised in this case are of general importance to the work of the Tribunal, the Appeals Chamber deems it important to consider the question of the validity of the guilty plea.

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Notion(s) Filing Case
Appeal Judgement - 19.10.2000 KAMBANDA Jean
(ICTR 97-23-A)

102. The Appeals Chamber notes that nothing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for each count on which an accused is convicted. However, in view of the references in Rule 101(C) to “multiple sentences”, and to “consecutively or concurrently”, it may be argued that the Rules seem to assume that a separate sentence will be imposed for each count.

103. The Appeals Chamber finds in this regard that the Statute is sufficiently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber. The Appeals Chamber upholds the argument of the Prosecution that a Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty.[1]

109. It is thus apparent that it is within the discretion of the Trial Chamber to impose either a single sentence or multiple sentences for convictions on multiple counts. However, the question arises, in what circumstances is it appropriate for a Chamber to exercise its discretion to impose a single sentence.

110. On this point, the Appeals Chamber notes that with respect to the particular circumstances of the Blaškić case, ICTY Trial Chamber I stated that

the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span … In light of this overall consistency, the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.

This followed similar reasoning in the Jelisić case.[2]

111. The Appeals Chamber agrees with the approach adopted in the Blaškić case: where the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period, it is appropriate for a single sentence to be imposed for all convictions, if the Trial Chamber so decides. The issue is whether this case falls within such parameters.

See also paras. 104–108.

[1] Prosecutor’s Response [Prosecution’s Response to Jean Kambanda’s Provisional Appellant’s Brief of 30 March 2000”, 2 May 2002], at para. 4.164.

[2] “Judgement”, The Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, T. Ch. I, 14 December 1999, para. 137.

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ICTR Rule Rule 101(C) ICTY Rule Rule 101(C)
Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

15. Before considering what the Prosecution’s duty of disclosure is under sub-Rule 66 (A) (ii) of the Rules, it is necessary to consider whether the testimony given by a witness in a case can constitute a “witness statement” within the meaning of the sub-Rule. The Rules do not define what constitutes a witness statement.  The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.  The Appeals Chamber is of the view that when a witness testifies during the course of a trial before the Tribunal, the witness’s verbal assertions recorded by the Registry’s technical staff through contemporaneous transcription, are capable of constituting a witness statement within the meaning of sub-Rule 66 (A) (ii).  The testimony will constitute such a witness statement and therefore be subject to disclosure, only if the witness is intended to be called, in accordance with the sub-Rule, to testify in subsequent proceedings in relation to the subject-matter of the testimony.  In other words, the testimony is a witness statement for the subsequent proceedings.

16. It follows that the Prosecution does have a duty to disclose such witness statements to the Defence under certain conditions.  Whether or not they should be “made available” pursuant to sub-Rule 66 (A) (ii) depends upon the stage of the proceedings that a case has reached.  […] [T]he sub-Rule should be given its plain meaning that, once a witness has given evidence in court, the Prosecution can no longer intend to call that witness to testify, and that there is therefore no obligation to make available any subsequent statements from the witness, unless the witness will be recalled as an additional Prosecution witness in the sense of the sub-Rule. […]

17. The Appeals Chamber is also of the view that sub-Rule 66 (A) (ii) can be applied, mutatis mutandis, in appeals, pursuant to Rule 107. Additional evidence may be admitted on appeal by way of Rule 115, and prior to the presentation of such evidence through witnesses under the rule, the presenting party shall follow the procedure of sub-Rule 66 (A) (ii) to disclose witness statements to the other party.

[RULE 66(A)(II) WAS AMENDED ON 1 DECEMBER 2000, 13 DECEMBER 2000, AND 13 SEPTEMBER 2006.]

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ICTR Rule Rule
66(A)(ii)
ICTY Rule Rule
66(A)(ii)
Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

31. […] [T]he close of trial proceedings means the close of all proceedings before a Trial Chamber, ending with the delivery of the judgement. […] [T]he practice of the Tribunal [is] that evidence disclosed after the close of hearings but before judgement may lead to the re-opening of a case at first instance.[1]  The situation could arise where, following the close of the presentation of evidence, but prior to the delivery of the judgement of the Trial Chamber, exculpatory evidence relating to the accused has come to the possession of the Prosecution.  A Trial Chamber is entitled to have the benefit of all relevant evidence put before it in order to reach an informed and well-balanced judgement, and its ability to accept evidence late prior to judgement is in conformity with the requirement of a fair trial under the Statute and the Rules.  In such a situation, it would be open to the Defence to move before the Trial Chamber, right up to the date of judgement, to seek permission to re-open the trial proceedings to enable the Defence to present the new exculpatory evidence that has come to light.  The Appeals Chamber therefore takes the view that the duty of the Prosecution to disclose to the Defence the existence of such evidence pursuant to Rule 68 continues at least until the date when the Trial Chamber delivers its judgement.

32. […] the Appeals Chamber also believes that the Prosecution is under a legal obligation to continually disclose exculpatory evidence under Rule 68 in proceedings before the Appeals Chamber. The application of Rule 68 is not confined to the trial process. Like sub-Rule 66 (A) (ii), Rule 68 provides a tool for disclosure of evidence. In the context of the Rules, admission of evidence on appeal can be effected through either Rule 115 or Rule 89, but the Rules do not specify means of disclosure in appeals. This is where Rule 107 has a role to play: to enable the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications.  […]

[…]

38. However, the Appeals Chamber considers that the Prosecution may still be relieved of the obligation under Rule 68, if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation. […]

39. […] Under Rule 68, the initial decision as to whether evidence is exculpatory has to be made by the Prosecutor. Without further proof that the Prosecution abused its judgement, the Appeals Chamber is not inclined to intervene in the exercise of this discretion by the Prosecution. […]

40. […] It is to be noted, however, that a request based on Rule 68 is not required to be so specific as to precisely identify which documents shall be disclosed. […]

[1] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, para. 22.

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ICTR Rule Rule 68
Rule 107
ICTY Rule Rule 68
Rule 107
Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

15. […] The usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime. […]

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Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

43. The Appellant submits that the Appeals Chamber should order the Prosecution to submit a signed, sworn affidavit to certify that it is aware of its continuing obligations under sub-Rule 66 (A) (ii) and Rule 68 and has produced to the Appellant all material requested […].

45. This type of order is one that should only be made by a Chamber in very rare instances.  The Prosecution is expected to fulfil its duties in good faith.  This has been acknowledged in the document known as the Standards of Professional Conduct for Prosecution Counsel, issued by the Chief Prosecutor on 14 September 1999.  Only where the Defence can satisfy a Chamber that the Prosecution has failed to discharge its obligations should an order of the type sought be contemplated. 

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ICTR Rule Rule 66(A)(ii)
Rule 68
ICTY Rule Rule 66(A)(ii)
Rule 68
Notion(s) Filing Case
Decision on Motions - 26.09.2000 BLAŠKIĆ Tihomir
(IT-95-14-A)

52. […] The functions of the Registry are defined in Rule 33 of the Rules. However, the Tribunal is bound, above all, by its Statute. Article 21 (2) of the Statute provides for the right of an accused (who may become an appellant subsequently) to a fair and public hearing, subject to protective measures in respect of victims and witnesses. Article 21(4) (b) guarantees the accused the right to have adequate time and facilities to prepare his defence. It follows that there is a duty on the part of the Registry to make available to the public and in particular, the accused or appellant, Tribunal materials, subject to appropriate protective measures indicated by Chambers, to facilitate the preparation of defence or appeal. It also follows that the Registrar through the Registry is required to assist counsel who seek access to testimony given in open session.

See also paras 53-54. 

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Notion(s) Filing Case
Decision on Admission of Affidavits - 18.09.2000 KORDIĆ & ČERKEZ
(IT-95-14/2-AR73.6)

22. As a general principle, interpretation of the Rules of Evidence should “best favour a fair determination of the matter” and be “consonant with the spirit of the Statute and the general principles of law.”[1] In interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its “ordinary meaning” and “in the light of [the] object and purpose” of the Statute and Rules.[2]

23. The Trial Chamber relied on the principle of effectiveness (interpretation par la méthode de 1’effet utile or ut res magis valeat quam pereat) in finding that “the Rules must be interpreted to give them useful effect.”[3] The question arises as to whether or not the Trial Chamber’s interpretation achieved this, without contravening the rights of the Appellant and the need to ensure a fair trial both of which requirements underline the object and purpose of the Statute and the Rules. As the International Court of Justice has stated:

The principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions...a meaning which...would be contrary to their letter and spirit.[4]

[…]

32. […] [T]he Rules must be interpreted with some degree of flexibility, the primary object being “to achieve justice, not to delay it, and not to permit mere technicalities to intrude where there has been no material prejudice caused by a non-compliance.”[5] Indeed, the Appeals Chamber has, in some other types of cases, accepted non-compliance with the precise terms of a Rule, provided it has no adverse effect upon the integrity of the proceedings or the rights of the accused.[6] […]

[1] Although this is the wording provided in Rule 89(B) of the Rules, which relates to “cases not otherwise provided for” in Section 3 of the Rules (the title of Section 3 being: “Rules of Evidence”), nevertheless the general principle is important.

[2] In interpretation, the Tribunal is guided by the principles which may be drawn from Article 31(1) of the Vienna Convention on the Law of Treaties (1969), U.N. Doc. A/CONF.39/27: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” These principles are considered today as general principles to be applied in the interpretation of all international instruments. See also Prosecutor v. Duško Tadić, Decision on the Prosecutor’s Motion requesting protective measures for victims and witnesses, Case No. IT-94-1-T, 10 August 1995, paras. 18 et seq., and Prosecutor v. Zejnil Delalić et al. Judgement, Case No. IT-96-21-T, 16 November 1998, para.158 et seq.

[3] Transcript p. 16487. The Trial Chamber referred to Case Concerning the Factory at Chorzów, (1927) P.C.I.J Series A, Vol 2, No.8 at p. 2 and The Corfu Channel Case, 1949 I.C.J. Rep., at p.4. In the former, the Court held that in interpreting a provision of a particular convention, “account must be taken not only of the historical development of arbitration treaties, as well as the terminology of such treaties, and of the grammatical and logical meaning of the words used, but also and more especially of the function which, in the intention of the contracting Parties, is to be attributed to this provision.” (p. 24).

[4] Interpretation of Peace Treaties (second phase), Advisory Opinion, I.C.J. Reports, 1950 p. 221, at p. 229.

[5] Kupreškić, Separate Opinion of Judge Hunt, para. 18.

[6] Examples are: Kupreškić, wherein the Appeals Chamber found inter alia, that although a decision had been rendered based on an oral motion for the taking of a deposition and although Rule 71(B) stipulated that such a motion should be in writing, this was “merely of a technical nature and ha[d] no adverse effects upon the integrity of the proceedings or the rights of the accused” (para. 15); while in Prosecutor v. Goran Jelisić, Order, Case No. IT-95-10-A, 21 March 2000, the Appeals Chamber, inter alia, rejected a request to strike out the Prosecution’s Notice of Appeal because it had not been served by the Prosecution itself (which a plain reading of Rule 108 would suggest is required) but rather through the Registry, finding that this was the standard practice of the Tribunal and that the Appellant in that case had “suffered no material prejudice.” These cases are however not comparable to the instant case as it is clear that on their particular facts the non-compliance found was indeed “merely of a technical nature” (Kupreškić, para. 15).

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Notion(s) Filing Case
Decision on Interlocutory Appeals - 13.09.2000 NGEZE & NAHIMANA
(ICTR 97-27-AR72, ICTR-96-11-AR72)

NOTING that Article 7 of the Statute of the Tribunal restricts the Tribunal's temporal jurisdiction to "a period beginning on 1 January 1994 and ending on 1 December 1994";

CONSIDERING therefore that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994;

CONSIDERING however that the above cannot prevent an indictment from making reference, as an introduction, to crimes previously committed by an accused;

NOTING the decision by the Trial Chamber not to refer to events prior to 1994 except for historical purposes or as information and that it would not hold any accused accountable for crimes committed prior to 1994;

CONSIDERING that the question of the Tribunal's temporal jurisdiction does indeed fall within the scope of application of Rule 72 (D)[[1]] but that in the instant case the question lacks interest in that the Appeals Chamber is convinced that the Trial Chamber will not use events prior to 1994 as the sole factual basis for a count of the indictment; and that therefore the Trial Chamber did not overstep its temporal jurisdiction;

[1] [At the time this decision was issued, Rule 72(D) provided: “Decisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right.”]

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ICTR Statute Article 7 ICTR Rule Rule 72(D)
Notion(s) Filing Case
Decision on Statement of Deceased Witness - 21.07.2000 KORDIĆ & ČERKEZ
(IT-95-14/2-AR73.5)

20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.

[…]

22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability.  […]

[…]

24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.

 

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ICTR Rule Rule 89 ICTY Rule Rule 89
Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

120. […] Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable. 

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Notion(s) Filing Case
Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

[1] Rule 85 of the Rules provides that evidence at trial shall be presented in a certain sequence unless otherwise directed by the Trial Chamber in the interests of justice. 

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Decision, 16 July 1998, para. 17 (original emphasis).

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ICTR Rule Rule 85(A) ICTY Rule Rule 85(A)